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Criminalize Fake News (joelx.com)
18 points by silexia on Jan 16, 2019 | hide | past | favorite | 24 comments

Non-US dictatorships are doing this now. They use it as a tool to crack down on dissent. It's a patently terrible idea to criminalize something where it's impossible to prove intent.

Seriously! I usually try to avoid news-related articles, but this time I'll bite.

When are we going to stop striving for some utopian perfection that is not there and instead realize/accept that most codified valuation have a conjugate trade off that can't be messaged away.

I know I'm not saying anything interesting here, but it bears repeating, there is probably no set of laws that (1) has strong protections put in place to resist abuse (2) is going to truly champion free speech and (3) still have real world protections against fake news that can't be easily circumvented.

What's the difference between a interest-group paid authoritatively-toned opinion-piece and fake news? How much of the former are you willing to nondiscriminatory censor to ensure squashing the later? What is the social/economic blow-black for that censorship?

Said another way, at what point does omitting facts become misrepresentation? And how many people's livelihoods are you willing to bet on the quality of your distinction?

When it comes to fake news, I'm as disgusted as the next person, but not every misuse of free speech deserves the special legislation that we grant to hate speech.

I'm confused, I would be perfectly happy to stop people from making a livelihood out of writing a "interest-group paid authoritatively-toned opinion-piece" if there were a safe way to do so without damaging other rights.

It’s not impossible to prove intent.

True, but then you have e.g. The National Enquirer and other supermarket tabloid style outlets. How would you criminalise deceptive fake news about Russia, Elections, Trump or Clinton, versus fake news about Elvis, Aliens, Hitler and Hamsters? Remember that the tabloids publish these false stories intentionally with the deliberate intent to try and convince the reader they are real. The authors know that Elvis is not alive and working in Burger King, but they say it anyway...

It's basically going to prove impossible to find a definition of 'fake news' that everyone is happy with. It can't just be 'Anything that some political group does not approve of' for instance, and it must be neither too broad (including all sorts of innocent publications, like tabloids mentioned earlier, foreign or historical propaganda, advertising that criticises its competitors, etc.) making it impossible to enforce, or narrow (fail to include certain categories of fakery) thus allowing loopholes and failing to accomplish anything.

But ... I think there are pretty good laws in place at the moment to deal with slander, libel, defamation and generally saying (or publishing) untrue things about people (or companies, entire groups of people defined by some shared attribute, locations, etc.) in a way that harms them (materially, or emotionally, maybe just potentially), and they actually deal with the situation where the intent is humour or parody. Too much of the time people have this knee-jerk reaction to X, something happening on the Internet, where they decide that the Internet-relatedness of this X makes it special (despite it being simply the age old problem of Y, but on the Internet) and demand a new crime of 'X' be created with incredibly harsh penalties like life in prison or death or billion dollar fines. But in general, it would suffice to continue to prosecute people for Y, just making sure that the Y-on-the-Internet cases also get looked at and prosecuted equally. I have no real problem with adding 'but on the Internet' as a qualifier to exiting crimes, in the same way as 'with a firearm' or 'while intoxicated' get tacked on as modifiers, increasing prison time and fines as appropriate, but this is almost never put forward as a suggestion.

So maybe we just need 'Libel, but on the Internet' to be prosecuted more often? Meh...

Sounds simple but is super complicated.

Showing that something is done purposefully and knowingly instead of negligently and recklessly is hard. It limits the practical enforcement even in the existing false reporting statutes.

Freedom of speech protects strongly from prior restraint (aka pre-publication censorship) and allows people and media to say anything, but there can be legal consequences in many cases. There are the "yelling fire in the crowded movie theater" type cases that lead to convictions when someone has been instigating panic, riots or violence in the social media.

Something like "the migrant caravan" can be safely used as a false news because the news is technically true, it's just exaggerated beyond any reason.

Proper journalism relies on anonymous sources and sometimes journalists are duped when they report something not checked from multiple sources. Legal risk from doing your work would make live unnecessarily difficult.

Yeah, it's really hard to tell what's deliberate and what isn't with false information. I mean, many people would say the likes of Info Wars is fake news, but... I'm pretty sure Jones and co are crazy enough to believe much of what they pubish there.

And given that a lot of media outlets also make mistakes, well it feels like such a situation would basically just make anyone publishing anything absolutely paranoid about ever being 'wrong', which wouldn't really make things any better.

> I'm pretty sure Jones and co are crazy enough to believe much of what they pubish there.

I don't believe Jones himself does, but maybe some contributors do. However: (some of) the audience definitely believes it. When they reproduce it, they do so with the best intentions.

I agree regarding mistakes - otoh, being paranoid about making mistakes might be a good thing in today's media. Public shaming (by their competitors) isn't happening / working, that might be a good side effect.

> Showing that something is done purposefully and knowingly instead of negligently and recklessly is hard.

That goes for murders just as well, it’s not an argument against fake news or murder being criminal.

That's true. "Intent to publish" is probably pretty easy to prove, but "knowledge of falsehood"? Short of lie detector tests (that are questionable iirc), how would one do that?

> it's just exaggerated beyond any reason.

I'm not convinced that this would be legal.

As an example: let's assume someone is in a theater and has a lighter. They flick the lighter on, so that there is a flame. You them scream "FIRE!!! EVERYONE OUT!!!" Let's also assume that people follow the direction (a key point, which now fulfills insighting undo panic).

Would you be arrested, or at minimum fined? I believe so. The key phrase being "beyond any reason". But clearly this can be much more nuanced than the example given above.

Disclaimer: I'm not a lawyer

>The only reason for this was they read one news source and I read another.

There's your problem. If you were both unbiased, I would assume that you both went back to your news sources and found out which one was misleading. Then whoever was relying on the unreliable news source, changed their news source. They shared that info with other people, and that unreliable new source is now out of business.

Since it's a pretty safe bet that such a thing did not happen, it should be obvious that you're the problem. Personally I could not fathom accepting any news organization's account of any topic as unbiased and complete. For most of those stories, I don't care, they don't affect my opinions. But for things that do matter, I deliberately seek out opposing opinions and see if they can make a convincing argument.

The problems with any law or system against 'fake news' can basically be summed up as follows:

1. As said, how do you prove intent? Everyone is wrong about something, and some people are literally insane. Any attempt to prove it beyond the most obvious cases (aka admissions of lying/trolling) would be exceedingly difficult, likely catch out many otherwise legitimate media outlets and end up basically punishing people for making mistakes/being dumb/being insane.

2. Who determines what's fake and how do they do it? Any censoring system is ripe for abuse, and will be co-opted by political fanatics to 'punish' the other side at the earliest opportunity. Don't think many people would trust the Trump administration to make this sort of judgement. Nor would anyone sane trust any sort of government institution.

3. Even if you do somehow get a neutral third party, you get into the question of what counts as 'fake news'. Satire is obviously fine, but pretty much every site classed as 'fake news' now claims to be writing satire.

So you then get stuck trying to decide what can 'legitimately' be called satire and how that should be identified. Do you need a giant label on every satirical article now?

You also get stuck in heavily contentious areas where the 'truth' isn't exactly some obvious thing that all sides have agreed on. There's a pretty big spectrum between saying something that's objectively false (like, the Earth is flat) and something extremely contentious (X religion/belief is right, here's a explanation of the causes behind the Arab Israeli conflict, etc).

Some stuff is so heavily debated that people could give you a dozen studies, anecodes and case studies for any argument you want.

Either way, it just seems like a bad idea that has the potential to cause more problems that it solves.

these are strong points.

i wonder if there can be some kind of (potentially algorithmic) metric that tells us how much of an article is unsubstantiated? we already have opinion pieces and editorials as categories. can we use such categorizations to indicate some measure of trustworthiness of a given article?

Criminalizing it would lead to proceedings in a court of law, which might actually help in definitively establishing a narrative of truth. Unfortunately, I am not confident that even courts can be relied upon to be unbiased.

Comments echoing the author's sentiment here are all over the NYT story concerning the fake "Russian Disinfo Campaign" for Roy Moore orchestrated by the friendly-sounding "Democracy Integrity Project" which broke 1 month ago:


How about this instead?

* teach critical thinking and how to compare sources

* promote news organizations that are funded by individual donations or subscriptions (for instance, The Guardian).

> teach critical thinking and how to compare sources

I want to say "good plan", but turning everybody into journalists defeats the idea of specialization. We do regulate how to build houses so that you don't need to become an architect, structural engineer, masonry expert etc to judge whether those you paid to do the job did it well. If you really go deep, you'd need to become a medium expert on lots of topics to judge the accuracy of an article. That doesn't sound feasible.

The government promoting certain news organizations does sound like a bad idea to me. And are there even many that don't have any ads? The Guardian certainly has, and they sell user data.



"I may disapprove of what you say, but I will defend to the death your right to say it" -Alternatively attributed to Patrick Henry, Voltaire, and Evelyn Beatrice Hall

Besides... who gets to determine what fake news is, what if they're wrong, and what happens when they decide that fake news is real news, and real news is the fake news?

Teaching people critical thinking skills, one by one, while respecting everyone else's right to believe and say what they want, while difficult, is the far more virtuous path...

Also... Freedom of Religion implies Freedom of Belief...

Oh, almost forgot... Asking for criminalization of Fake News is exactly functionally equivalent to Censorship.

Censorship has quite the history... The Roman Empire practiced it, the historic Catholic Church practiced it, and the Chinese Government practices it today.


If history is to be believed, Censorship is far worse than Fake News...

I had a similar thought a while ago, but mine was that being lied to could be considered a tort.

So if someone labels something as news and I investigate it and discover that it isn't true, I could sue them for misinforming me.

I believe you need to prove a monetary loss of some kind to have standing to sue. The situations that I can think of that result from misinformation that cause a monetary loss are probably already considered fraud.

You can sue for slander, libel, sex abuse, defamation, etc., right? How can you always prove a monetary loss in those cases?

Also I wasn't necessarily suggesting it's actionable today but that maybe "tortious misinformation" should be.

In the case of slander, defamation and libel you have to prove that the words caused you harm, for example you lost a job due to a lie. A simple lie isn't enough to sue. A childish example: "HN user api loves to eat poop" isn't actionable unless you lose money because of it and because a reasonable reader knows that I'm not serious.

Sex abuse is clear, it causes damage to a person in a similar way if you assaulted them physically. Costs of therapy, medication and damages due to the loss of enjoyment of life can be clearly presented.

In other words, be like the soviet union, communist china, british empire and nazi germany? Governments should decide what is fake news? So every 4 or 8 years, we are going to have a new definition of "fake news"? No thanks.

I can't believe there are people advocating for government censorship. So we are okay with Trump shutting down CNN? And then in 2 or 6 years when another government comes into power, they'll shut down their version of fake news?

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