Have there been any digital disinformation cases where bad actors have been found or convicted?
This is a relatively new phenomenon with no obvious examples where purveyors of “fake news” were held liable for false reports. But trafficking in innuendo and libel is an ancient vice and current laws provide significant protection and well-established causes of action that can likely be employed. It is just a matter of applying proven strategies to new contexts. Consider the potential applicability of the following causes of action, among others.
Defamation and Trade Libel. There are many cases where courts have sustained claims for defamation against people who post smears on customer review websites. The same logic would apply to people who manufacture genuine-looking news articles that are just dressed-up libel. False statements denigrating the quality of a company’s goods or services may also give rise to a claim for another tort known variably as trade libel, injurious falsehood or product disparagement. These torts are broader than pure defamation because they are not typically confined to false statements that damage a company’s reputation.
Economic and Equitable Torts. State laws protect against malicious and dishonest interference in another party’s future business relationships, which is essentially what fake news targeted at corporations does. For example, the “Dreamer Day” hoax was intended to harm Starbucks’ business with third-party patrons of their stores. Similarly claims for deceptive trade practices and unjust enrichment could also likely be made against unscrupulous short sellers who rely on fake news to drive down stock prices.
Intellectual Property Law. Federal trademark infringement laws could provide a cause of action against anyone who posts a fake news item which incorporates a company logo to make an “article” or post look genuine, because the poster would be using a trademark in a manner that would be likely to cause confusion among consumers.
The purveyors of disinformation are often overseas. Does international law offer any recourse for businesses?
This is a global problem, and that poses a hurdle to successful suits in US courts, but it can be surmounted, depending on the facts of the case. Furthermore, many countries have protections similar to those found in US law.
When is suing or seeking law enforcement action useful to counteract disinformation?
This is an important question that each client must answer for itself. It’s important to consider remedies short of litigation, as well. For example, engaging with web-hosting platforms may reveal potential remedies to limit the damage from false stories. Where litigation is being considered, key issues to evaluate include:
1. Jurisdiction. Does the hoaxer reside in the US or have sufficient contacts with the country to establish jurisdiction?
2. Ability to pay. Is the defendant judgment proof? Do they have any funds to pay a civil award if they are found liable?
3. Time and expense. Litigation can be expensive and slow. A client will need to consider whether the effort is worth it in time and money.
On the other hand, litigation not only can vindicate a corporation’s rights but also deter other malefactors from similar behavior, bring to light valuable information about opponents, or expose wrongdoing to the press and the marketplace. Businesses will want to consider the facts of each situation and confer with outside counsel before making any moves.
Are there other ways corporations or institutions could respond to digital disinformation?
Fake news poses a serious threat to the integrity of corporate brands and their bottom lines. Like other new phenomena, such as cyber hacking and ransomware, corporations should not wait for the worst to happen before taking proactive steps. We recommend three broad strategies to defend against digital disinformation.
First, prepare. Increasingly, companies prepare for cybersecurity breaches through planning and table-top exercises. In the same vein, now is the time to game-out how a company will handle a fake-news attack. Assign roles to in-house talent who will lead in a crisis. Identify third-party validators who will vouch for the brand. Establish a brand presence on all major social media platforms, from Facebook and Twitter, to Instagram and Snapchat.
Second, proactively engage in the new media environment. Do not be caught flatfooted when an anonymous Twitter troll’s misinformation reaches traditional media outlets. Stay attuned to what is being said about you and your brand. Communicate with your customers, business partners, employees and suppliers. Build trust so they know to whom to turn with questions about what’s true and fake.
Third, speak for yourself. Be prepared to talk directly to customers and the public at large to debunk fakery. In this context, the solution to bad speech is more direct and credible speech.
Preston Golson is a Brunswick Director based in Washington, DC. He is a former CIA spokesperson.
Illustration: Edmon de Haro