After the rumors about fake news intentionally being spread through the internet during the US elections turned out to be true, a lot of questions began to rise: Do we need to be concerned? Who needs to take action? Who is responsible?
A few states decided that social networks need to be held accountable for this, because allowing this sort of news to reach millions of people without putting any constraints should not be left unpunished.
Whether or not this is a good idea, we will let you decide after you read the arguments for both sides of this matter. We hope you will enjoy this battle of ideas as much as we did!
Vlad Coman
Vlad is a second year student at the Faculty of Law from Babes-Bolyai University in Cluj-Napoca. Last year he had the chance to gain some experience in the field by working with a local law firm. He is interested in public speaking and academic debate. He aims to follow a career as lawyer.
Bernadett Koroknai
Bernadett is also a second year student at the Faculty of Law from Babeș-Bolyai University in Cluj-Napoca. She has a passion for law ever since studying it for the first time during her Erasmus semester. She is also a graduate of the Faculty of Letters from Cluj-Napoca in the field of translation and interpretation in Romanian – English – German.
Opening Statement - Vlad
The world has 1.2 billion Facebook users, 540 million Google+ users and almost 300 million Twitter users. Given the fact that of the 7 billion of Earth’s inhabitants, only about 2,4 billion have Internet access (through a computer or a mobile phone), those first figures seem pretty big.
What we are proposing in the following paper is to understand how do these big social networks generate income, why is that hugely important to this given debate, and how allowing them to perpetrate fake news of great interest can generate a great deal of misconception of the world that surrounds us.
How do social networks make money?
As we all know, we have free access to Facebook, Twitter, and other social networks. Knowing that they have thousands of employees, expensive servers to run and impressive headquarters, one might start to wonder how they can afford all that. To cut right to the chase, the answer would be advertising: they display adverts that every user sees while they navigate. Depending on how many people see and click those adverts, these social networks get paid. Last year, for instance, Facebook calculated how much income generated each user and the result was a bit over 5$. Every one of us contributed with 5 dollars to Facebook last year, even if we had no idea, just by using their product (free of charges). The conclusion is that they need us, because the more users they have, the more revenue they receive.
Why does that even matter?
What we have proven so far is that big social media is financially interested in us clicking links to third party websites, which is why a strange thing came into existence: clickbaiting. This term designates a tendency especially for news broadcasters to come up with sensationalistic headlines or intriguing thumbnails just to attract social media users. Those websites generate income through the exact same mechanism explained above.
Do not be fooled into thinking that news providers, when they show up in the advertising section of your newsfeed, do not follow the money circuit aforesaid, because they do. This is why they too are financially interested into people hitting the click button to their websites. Now, what would take for an average Facebook or Twitter user, who usually scrolls down boringly through his/her newsfeed, to click on a news website? The forecast? The fact that a flight got cancelled? The Government’s new tax policy? Most likely, no. It takes extraordinary news to catch someone’s eye: a war, a surprising cure to cancer, or “the wonders that onions make”. Sounds familiar? Sadly, it does.
After clicking on those bombastic headlines we realise we’ve been fooled. That was fake news. There is no new cure to cancer. Surprisingly, we keep seeing similar clickbaits every day, and those “news providers” do not cease to exist. That is because everybody is directly interested in those news to be out there and to generate clicks despite the fact they only seek to mislead.
How does that affect us?
In Australia, fake news was shared regarding blameable religious practices in the Muslim communities. Fake American news regarding the Chinese elections in 2016 was a huge argument for the Chinese authorities to censor even more the Internet there.
In Romania fake news about “scientific correlation between vaccines and autism” generated an unprecedented mass hysteria with hundreds of parents refusing to vaccinate their babies. The elections in the USA last year generated some mind-boggling headlines too: “Pope Francis shocks the World, endorses Donald Trump for president” (Ending the Fed)/ “WikiLeaks confirms Hillary sold weapons to ISIS” (The Political Insider) and the list goes on. Such dramatic effects like people taking political standpoints or putting their children’s lives in jeopardy due to fake news motivate us to take action and to demand big social media to be sanctioned for allowing fake news of great interest to be posted and shared. One’s financial gain should never justify the other’s misinformation.
Opening Statement - Bernadett
Since the last U.S. election, the importance of fake news in constructing the public’s view of the world has increased considerably. Because of fake news, in Washington D.C., a gunman has ‘self-investigated’ a pizzeria that was falsely reported to house a paedophilia ring. The news was published on many social networks and again highlighted the problem of who, and to what extent, should be sanctioned for the spread of fake news.
Many politicians and organisations, even whole countries like Germany, want the sanction of social media networks such as Facebook, in case they fail to delete fake news within the first 24 hours of notifying them about their existence. German Chancellor Angela Merkel together with the Justice Minister Heiko Maas want a fine of up to 500.000 euros. Surely, even the idea of sanctioning a social media site that is only the medium on which news travel, would equal the sanctioning of a piece of paper if we would have to compare it to the days when social media was inexistent but fake news still made the rounds. It sounds utterly inconsequential.
Social networks like Facebook, Twitter and the others are Internet service providers that have made our daily communications much easier. You are a click away from your friends and family. The use of these networks can be done just by registering and clicking the Terms and Conditions, which most of us do not read, yet we want them to be sanctioned for our misconduct. For example, Facebook, in its Statement of Rights and Responsibilities clearly states that the users should not post fake news, hate speech, and other malicious or unlawful materials. They also state that they cannot be held liable for these misconducts of the users and any lawsuit arising from these unlawful materials will not involve them. As we know, by clicking the terms and conditions, we agree to a contract, which is law between the parties.
The fact that one of them did not read the specifications is not the failure of the other. Moreover, according to Section 230 of the Communication Decency Act, social networks are given an immunity from liability for the information provided by others and in compliance with § 12-14 of Directive 2000/31/EC social networks are not liable, thus cannot be sanctioned for the mere conduit (transmission of information provided by a recipient), caching (transmission and temporarily storage of information provided by a recipient), and/or hosting (storage of information provided by a recipient) of information.
However, even with the existence of their own Directive, Martin Schulz, President of the European Parliament, considers that since fake news are a good source of income, they should become expensive fines for the social networks that act as a medium to display and access them. The problem is, what happens when the news is being covered as they are displayed? For example, the details of a mass shooting in the first few hours of the coverage are usually imprecise, should the social networks be fined for that too? Surely not.
The most important thing, though, is that social networks are working towards a solution. Albeit they could not counteract fake news during the elections, they have since updated policies and assume their responsibility to delete fake news as soon as detected. Facebook for example is working with Snopes, Factcheck.org, ABC News and PolitiFact to identify fake news and eliminate them. Google will ban sites that ‘misrepresent, misstate or conceal information’. This good will nature of the social networks for wanting to work together with involved parties to root out fake news should be considered the first and most important step which must be helped by the more than 2 billion users, by reporting fake news and checking facts themselves.
Vlad argues in favour of sanctioning social networks, because as long as they gain money if the sites containing fake news are accessed, they also need to have responsibilities. He states that the situation is unacceptable due to moral reasons as well, because someone’s misinformation should not be a source of money for anyone. On the other hand, Bernadett talks about how the social networks are just a platform on which this news is displayed, being the users’ fault if such information gets spread. Her point of view is sustained by the fact that users agree with the terms and conditions of the social networks when they access them, and such situations are already regulated there, along with the already existent laws which give social networks immunity from liability for the information provided by others. Moreover, social networks are already taking important steps to stop such incidents.
Rebuttal - Vlad
I’ve identified 4 main points in Bernadett’s opening statement. In the following I will summarise and try to counter-argue them.
1. Big social media is only a “mean of travel” for fake news, therefore it would be inefficient to sanction them.
I believe social media is not only a place for fake news to be disseminated, but Facebook and other similar platforms are the very reason fake news exist. I have made an entire point in my opening statement on the financial convenience for so-called news broadcasters to deliver such fake news. To adhere to Bernadett’s comparison with the old days’ newspapers, fake news existed only because they were displayed in a newspaper. Therefore, we would not sanction “the piece of paper”, but the legal person that allowed for the fake news to be published in order for that not to happen again. We need to sanction big social media because they gain profit from allowing and encouraging this practice.
2. As the convention between the user and the provider states that the provider should not be liable for the user’s fake posts, there is no reason to sanction the provider. Moreover, there are regulatory documents worldwide that state the same (for instance, European Directives).
Although Bernadett’s point is perfectly viable for any jurist who reads it, we must keep in mind that this debate is about whether we should change the legislation or not. To appeal to a legal distinction, this debate is a judgment in equitas, rather than one in jure. Moreover, although any contract is law between parties, that doesn’t mean that they are not regulated. It’s the legislator’s duty to intervene by allowing some clauses and banning others. De lege lata Bernadett has a point. De lege ferenda I believe it is time to sanction big social media.
3. The problem with the news being covered as they are displayed.
Clearly, in a situation of mass shooting, an incorrect estimation of the number of victims doesn’t qualify as “fake news”. To be fake news there should not be any shooting. Slightly inaccurate side information does not misinform or deceive. It is a great achievement for our society to be able to cover events as they unfold. Basically, every one of us can turn into a news reporter due to social media. In our view we couldn’t, by any means, sanction a social media platform for allowing some news that aren’t perfectly accurate to be posted and shared as long as the core information is authentic.
4. Social networks already try to solve this problem by themselves.
The problem is that the remedy is not efficient. The main response from the social platforms was adding the institution of false flags. What this means is that if readers appreciate news to be fake, they can “flag” it, meaning that other readers could see that tag while they see the article. It is not really clear, though, how can this change people’s behaviour towards reading a flagged article. As a result, there’s hardly any change in the fake news department, and that is just because any article could be flagged as fake, this system being extremely vulnerable. We need social platforms to take action not by flagging articles, but rather by verifying every single news coming from reporters that had shown a consistent tendency of posting fake news.
Rebuttal - Bernadett
I think that the economic factor in this debate should be considered from various sides. Vlad pointed out that advertisements are at the core of social networks’ revenue and every user contributed $5 to their income, but this income enables social networks to encourage economic growth and jobs through three effects: being a tool for every marketer, a platform for application developers, and a core for global connectivity. It is estimated that Facebook alone has enabled $227bn of economic impact and 4.5 million jobs worldwide in 2014 alone. Social networks have the tools and means to help businesses present themselves in a reachable and easy way, thus employing more people. The marketing effects that were facilitated by Facebook in 2014 are estimated to be worth $148bn and the economic impact of the developer tools reaches $29bn worth of economic impact.
Their economic prowess is so important, that you have to consider twice if you want to hold them liable for every fake news that appears on the internet. By allowing these kind of lawsuits, where you sanction mere mediums that allow people to connect with each other, you do not reach the essence of the problem (namely the people who construct these fake news), but you could be starting an avalanche of lawsuits that have the potential to weaken their internal economy, forcing them to dismiss employees, thus increasing the unemployment rate. Less skilled people that can work on the system means worse quality, which affects app developers, marketers and every other user too.
A basic principle of criminal law is that you cannot be held accountable for another person’s actions and cannot be sanctioned for them either. If we are to sanction social networks, who are merely the medium which transmits the information, we would be acting against this basic principle on one hand. On the other, we would completely disregard these social networks’ active steps in combating fake news. Facebook has upgraded its way of reporting fake news and flagging them as unreliable sources. Google AdSense will automatically ban everyone who does not comply with its new, stricter rules to advertise.
The problem here is to identify the source where the fake news originated, and make those people responsible for their actions. They are the reason why some parents in Romania didn’t vaccinate their children, because they falsely thought it would cause cancer. They are the root of that onion that makes wonders.
I do understand Vlad’s point that fake news can and did lead to crimes and that not just the people who acted because of them should be held liable, but also the people who stand behind it. The problem here is that social network companies are not the ones who write and start the spread of fake news. They already identified the problem and are working to solve it, but with such a big system of connections and millions of lines of code to write, test, and then implement, fake news cannot be wiped out overnight. They took the necessary steps for the problem to be solved, and now it is up to the wide public to educate themselves on how to research news, on what they should and should not believe.
A computer code can only give the means to help take action (e.g. possibility of flagging and reporting of fake news), but the human factor is here the decisive one. We need to stop making up news for profit, we need to stop reading, believing, and spreading them. Fake news is a man-made problem and can only be solved by us.
At this point, Vlad refutes Bernadett’s line of reasoning which concerns the existent tools created to regulate the display of fake news, arguing that not only they are and should always be open to changes, but they are also not efficient. He also nuances the portrayal of social networks, pointing out that more than a mean of news to travel, they also represent the very reason why it is so easy for fake news to exist and spread. Bernadett, on the other hand, points out that Vlad’s solution does not combat the root of the problem: the people behind the fake news. As long as we have social networks who are doing their best to fight against fake news, our focus should be to seek their source and try to combat that, not some companies who don’t create them and proved to be very useful to our society from so many perspectives.
I hope this debate was a pleasure to read, and the conclusions will help you form your own opinion!
Conclusions - Vlad
One of the main clashes in this debate was the economic mechanism that triggers the need of social networks to support the existence of fake news. As my point demonstrated that, I believe this is a major argument in sanctioning social networks. It’s undeniable that they provide jobs and pay taxes, but this couldn’t, by any means, justify their bad faith in dealing with this issue.
Also, Facebook, Twitter and the rest cannot be considered just a third part in this problem. Being directly interested for the fake news to be viewed by as many people as possible, they’re a part of the problem. Most of the sites that provide fake news would not last too much in a free market economy, but they thrive because of the social platforms which propel their articles to the big public. Therefore, by sanctioning these platforms we would deal with the main problem by dealing with the problem’s way of propagating itself: social networks.
Although Bernadett has a point saying that we need to stop propagating fake news, we (the big public) don’t seem to mind, and without any legislative regulation in this matter, we will continue to read and believe what we are served.
Conclusions - Bernadett
I believe that Vlad’s idea of verifying every piece of news from reporters that have shown a tendency to post fake news is satisfying and achievable, but, again, there are many fake news that are not posted by reporters, but other people or entities. The number of these actors is so high, that Vlad’s solution only applies to small sectors of the problem at hand.
What I think to be of importance is not to find a cure for the immediate effect of the fake news, but to rather go through a process to eradicate the problem at its core. This process has been started, as I said in the opening statement, by the social networks. They are trying to give a good solution for every party involved by implementing what I believe to be the first generation of means on how to combat fake news. Legislation that is in effect now should continue to be applied, and whether or not it needs changing should depend on the success of the measures taken.
Disclaimer: The arguments presented in this debate do not represent the opinions of the two authors.
This debate has been published in Lawyr.it Vol. 5 Ed. 1. All references used can be found at the end of that issue.
