Fake news – coming up trumps | Mayo Wynne Baxter
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Fake news – coming up trumps

It has been hard to overlook the latest surfacing of so called ‘fake news’ stories on our newsfeeds. Very recently the 2016 US presidential election campaign brought this to light. A recent study by Stanford University suggested that during the election campaign, up to 62% of US adult citizens received their news through social media platforms such as Facebook and Twitter; and over half of those who saw a ‘fake news’ story recalled believing its contents. Technology now facilitates the spread of fabricated stories, and it seems as though the knee jerk reaction to the election campaign for some was to write and publish false news stories; often with outlandish or bizarre headlines in an attempt to defame their political rivals.  Some have therefore suggested that these bogus stories could have had an adverse effect on the outcome of the election.

What had initially surfaced as an innocent satirical gimmick has now kindled an effort to actively attempt to confuse real news stories with untrustworthy and dishonest anecdotes, both sides of the Atlantic. Nonetheless, fake news is not a new phenomenon. Recently the BBC reported a 100 year old story that was used to drum up support amidst a propaganda effort during the First World War, designed to demonise the enemy and encourage revulsion (http://www.bbc.co.uk/news/entertainment-arts-38995205).

Fake news, if nothing else, undermines the public’s confidence in the general media. It is no exaggeration to say that it is capable of damaging one’s reputation, able to undermine a nation’s constitutional laws and unsettle a democratic process. It has the potential to bring about a very real change, and therefore induces far reaching legal implications.

The legal bit

Constitutional law

Constitutional law is often heralded as a complex and inaccessible area of the law. It is the area of law that concerns the powers of government, the powers of those who make the law and the powers of those who interpret the law. In this context, the values we are considering are really rather straight forward.

When it comes to elections, it is legally imperative that everyone eligible to vote has the freedom to do so in the manner they so wish. A fake news story has the ambition of changing this. A writer of these stories may intend to lower the person in the estimation of right-minded members of society – trying to skew the perception of what the person is really like. As a result of this confusion, it is often difficult to tell the true stories from the phony ones. In an election campaign, this could feasibly damage one’s confidence in the person and swing the minds of undecided voters. In the UK (under section 106(1) Representation of the People Act 1983) it is an illegal practice to publish a false statement about a person in an attempt to try and influence an election. This means that writing a false story in an attempt to influence the way in which people vote is a criminal offence. Not a good idea.

Pleasingly, English law goes a great deal further than this to protect victims of fake news, whether or not the subject matter of such stories is held favourably in the public’s eye (the law does not discriminate). A victim can therefore seek to bring a claim on several other bases; seeking the greatest financial remedy available to them. Indeed, we would actively encourage a claimant to do so.

Image Rights

In England although there is not one single right to one’s image, there are a variety of laws in place to protect a person from being misleadingly, mistakenly or falsely accused of something in a fake news story that cannot be supported and which subsequently results in their reputation being damaged. This can be contrasted with some states in the US where a person can own a right to their image.

You may have heard of defamation (a false statement harming one’s reputation) in the form of slander (a false spoken statement) or libel (a false written statement). These types of claims are often brought by a person in the news who has suffered some form of damage to their name. With the rise of ‘fake news’, we are seeing an increase in circumstances which could quite feasibly develop into libel claims. It is likely that those responsible for writing and publishing these articles will find themselves on the end of a very costly legal settlement, having had little forethought to the consequence of their actions.

N.B. There are also some other robust laws in place to protect against malicious, negligent and false publications. It could also be possible to bring a claim for malicious falsehood.

So why don’t I know about all these cases in the news …?

When you are dealing with Solicitors, everything is confidential. Whether you are selling your house or defending a libel claim, your Solicitor has an obligation and a duty to keep your affairs confidential between yourself and them. It’s a duty to you we take very seriously.

In England the media are also restricted from reporting intimate details of legal proceedings whilst they unfold, in an effort to ensure the integrity of each case as it progresses in court. In essence, this is to protect a juror or person involved in the case from being influenced in their decision making by potentially inaccurate news stories. If a person is being prosecuted, then the publisher of stories relating to the case could be held in contempt of court – which can land them with a hefty fine and in prison. Therefore you may not be aware of many fake news stories for several reasons. It could be that no one has yet been pursued a claim or that the case is simply confidential.

There are, of course, many cases we do hear about. For starters, social media is not immune from legal action. In fact the rise of social media seems to have brought with it a surge in libel claims (some claiming an increase of 300%) which is as a result of users’ lack of legal awareness and appreciation of the consequences for what they are writing. You may recall in 2013 hearing about an unfounded allegation on Twitter linking Lord McAlpine to sex abuse claims (following a Newsnight interview) which made its way to the High Court. Lord McAlpine was awarded £185,000 in settlement of the claim. More recently in February 2017, you may have seen in the news a member of UKIP – Jane Collins- ordered to pay £54,000 each to three MPs in damages as a result of making defamatory comments in a speech about them during a conference in 2014.

The UK courts take the approach that anything said on social media is broadcast to the world in the same way a live television show is broadcast. Whether an individual, a company or a celebrity – you should never post anything online that you would not be confident saying in front of a camera.

Mayo Wynne Baxter – here for you.

We appreciate that untruthful news stories can be extremely damaging to a person’s reputation and confidence. If such a story is published then the parties involved should seek legal support. Within the world of law, recent reforms mean that mediation is becoming an increasingly prevalent way for parties to resolve their cases. Unlike a court settlement, mediation enables the parties to agree a legally binding solution to their problem, together, and rewards parties for cooperating. It is now one of the most sought after forms of settlement and is encouraged by the courts.

If you have been involved in the publication of a fabricated or damaging news story and want to avoid a lengthy and expensive legal battle, why not try our mediation services? We have an array of experienced professionals with a wealth of experience dealing with complex and challenging legal and personal issues. We want to get the right result for you and your adversary so that you can walk away with your own remedy that you are both content with.

Our mediation services. They’re coming up trumps.


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