Amicus Curiae

Fake news and its legal issues in the post-truth era

Angelmhina D. Lencio

April 17, 2017

Oxford Dictionaries’ Word of the Year for 2016 is post-truth -- an adjective defined as relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” The popularity of the word is attributed to the proliferation of fake news online.

In recent years, the international community has seen a rise in fake news’ use as a strategic tool. In an effort to minimize the claimed deleterious effects of fake news, policy makers are now exploring ways to regulate fake news online. German lawmakers have proposed a regulation where social media sites can face hefty fines if they do not remove fake news posted through their Web sites. Similar calls have begun in other European Union countries.


In the Philippines, Senator Francis Pangilinan filed a resolution directing the appropriate Senate committee to conduct an inquiry on the proliferation of fake news on social media Web sites, particularly on Facebook, and to determine the possibility of amending the Cybercrime Prevention Act of 2012 to penalize these Web sites. Senator Pangilinan went on to state that Facebook may be considered as a “de facto media company or publisher” and should thus be accountable for the content it “distributes and allows to be distributed.”

However, the regulation of fake news is far from simple. Several legal issues must be addressed from the perspective of at least two different stakeholders -- the Web sites and the “news” writers.

As to the social media platforms and Web sites, is the mere act of providing a platform in which fake news articles are posted sufficient to hold them liable? Would a law imposing criminal liability on that basis not be unconstitutional?

Under United States federal laws, there is a difference between the liability for fake news of media publishers and of Web sites. While a media publisher can be held liable for libel, a Web site which merely posts a story written by an independent third party cannot be held liable for the story’s contents. The Communication Decency Act absolves such Web site from liability by not treating it as the publisher of the article.

Similarly, in the Joint Declaration on Freedom of Expression and “Fake News,” Disinformation, and Propaganda issued by leading Special Rapporteurs on freedom of expression, it was opined that to be consistent with the right to freedom of expression and the right to impart information, “intermediaries” should not be held liable for “third party content.” Such intermediaries include Facebook, Twitter, and other Web sites not run by news agencies. Intermediaries can only be held liable if they intervened in the content or refused to obey an order issued by an independent body -- such as a court -- to remove the content.

Said line of reasoning is consistent with the ruling of the Supreme Court in Disini v. Secretary of Justice, where the Court held that the mere act of sharing a libelous article cannot serve as basis for criminal liability, and that authorship of the libelous article should still determine responsibility.

Thus, it appears that the arguments for or against culpability for fake news would depend on the characterization of these Web sites. It may be argued that these Web sites are mere intermediaries, and should therefore not be held liable for the contents of articles posted by their users. Borrowing from the example of the Court in Disini, if a person posts on an office bulletin board a libelous statement, others who commented on the poster cannot be criminally liable as they are not the authors of the libelous statement. Should the person who provided the bulletin board then be held liable?

On the other hand, Web sites may also be characterized as de facto media companies or publishers, as the resolution proposes. In such case, the legal theory would hinge on the claimed intervention of the Web site in the publication of fake news.

Should Congress legislate measures penalizing these Web sites, the latter may need to draft more comprehensive censorship policies based on objective criteria. How these policies would be operationalized must also be thoroughly reviewed by legal advisers to minimize potential areas of exposure, i.e. grounds for lawsuits which users may bring as a result of any censorship effort. The first line of defense to these lawsuits is a review and revision of the Web sites’ terms of engagement with its users.

Further, there would inevitably be gray areas in the regulation of fake news. Even medical or scientific claims posted in some articles are clouded with controversy. Thus, Web sites would then have the obligation not only to screen obviously fake news articles but also to determine the truth of debatable statements posted through their platforms.

Facebook has already collaborated with external fact-checkers to address the fake news problem. However, it is still uncertain whether such efforts can be used to interpose a “good faith” defense and repel liability. Web sites would still face a big risk of being exposed to prosecution for failure to screen articles, despite best efforts, in the absence of codified points of action to be required from these Web sites.

Most importantly, the question that needs to be answered is should fake news be the subject of government regulation in the first place? Practically speaking, penalizing Web sites for allowing fake news articles may also serve as an indirect prohibition against fake news. Thus, from the point of view of the article writer, it is important to consider whether fake news enjoys the protection of the right to freedom of expression.

At present, the rule is that dishonesty per se is not punishable. Even lies can be considered protected speech, provided they are not libelous. The right to freedom of expression does not have a correlative obligation to tell the truth.

Nonetheless, jurisprudence provides that speech may be curtailed should its utterance result in a clear and present danger which Congress has a right to prevent. Speech may also be curtailed if the interest of the government in repressing speech outweighs the interest of the writer. It is thus up to the government to show how the regulation of fake news can be justified.

Indeed, in these interesting times, truth may be the most valuable currency. However, the best defense against fake news may just be ourselves.