Fake News about Fake News in a Post-Truth Society

As a media lawyer who has been battling fake news and defending good journalism his entire career, Jonathan Coad has some thoughts on false headlines and controversy.

There has been a rare alliance between politicians and the media over what is being characterised as a modern phenomenon of “Fake News”. All agree it is a bad thing. There have even been suggestions recently that young people should be taught how to discern between Fake News and genuine news.

The type of “news” which is the subject of this controversy is said to emanate from a number of shady sources being used as social media to spread this information. However the real problem, faced in the UK at least, is the volume of fake news which is daily propagated by our commercial media; and in particular by the print press.

Even media professionals will be unaware of the extent to which both government and, to an extent, the judiciary are guilty of inaction concerning a problem which reared its head in the run up to the Brexit referendum when The Sun ran the now infamous “Queen backs Brexit” headline. Of course she did not, but you had to turn to an inside page to discover this and millions of people who read the headline on television news, newsstands and on apps would have no way of knowing that they were being mislead by The Sun.

Nor would they have been any the wiser after the Independent Press Standards organisation had insisted that The Sun publish a correction in a narrow strip at the foot of a subscript publication which would have been invisible to the millions of people who saw the headline via the TV, apps, newsstands, etc. It was therefore of no practical use at all to disabuse those whose voting intentions might have been affected by the false headline, which the Sun did not publish mistake. It did so at the same time as spending a six figure sum on a post transit campaign to ensure that we voted to leave the EU.

Press self-regulation, the three previous incarnations having been designed by Fleet Street to fail, though with the intention that their failings would not come to public attention, ensures that Fleet Street is free to do as did the Sun. So far as IPSO’s predecessor, the Press Complaints Commission, is concerned; it took the Leveson Inquiry to expose its utter failure to regulate the press properly when the serial illegality emerged both on the part of News International and Mirror Group Newspapers.

The government has also enacted the 2013 Defamation Act, which is a seismic shift in the law of defamation which includes a public interest defence, which was first created by the judiciary. The effect of the defence is that a newspaper can publish a story about an issue of public interest, which is both false and defamatory. But if they can persuade a judge that the newspaper reasonably believed that the publication was in the public interest, then no correction need be published. This creates the absurd situation that false and defamatory stories about public interest issues will stay permanently on the record for which a public interest is very hard to discern.

All this is the product of the grossly disproportionate power wielded by Fleet Street over those in whom power is vested by the electoral process. This emerged clearly from the Leveson Inquiry. While this is the case, Fleet Street will continue to purvey Fake News so long as it is profitable to do so. Against this any misinformation disseminated via the social is of little consequence.

Jonathan Coad is a consultant solicitor at Keystone Law. Read a longer post from Jonathan on the topic over on the Informm Blog.