Will massive financial punishments prove an effective deterrent to online misinformation?
At first glance, it might seem so, after tens of millions in damages were awarded in a high-profile defamation case against one of the web’s best-known misinformation peddlers. Early this month, a Texas jury slapped Alex Jones, of the conspiracy-promoting InfoWars website, with a $49 million (€48m) punishment, to be awarded to the parents of a child killed in the 2012 Sandy Hook school shooting.
For years, Jones had said the massacre – in which 26 people died, the majority primary school children – was staged. He claimed it was “completely fake” and a “giant hoax” pushed by people who oppose the US constitution’s second amendment protecting the right to bear arms. During the trial, Jones admitted in sworn testimony that he knew the mass shooting had been real, not staged.
This case is just the first of several. Many Sandy Hook parents filed defamation suits against Jones in 2018, claiming their lives have been made miserable by Jones and his followers, who have belittled their grief, and accused them of being state-funded actors. Some of Jones’s followers have threatened and stalked the families. The parents’ statements during the trial were profoundly moving.
The free speech vs defamation arguments still haven’t had a full-on consideration in court.
Jones attempted to argue that his first amendment free speech rights protected his Sandy Hook lies. But the jury ultimately agreed with the counterargument advanced by one of the parents’ lawyers, who had said in his opening statement: “Speech is free. But the lies, you have to pay for.” Under US law, free speech rights do not protect defamatory speech that damages the reputation of a person or business.
Thus, as many legal experts have pointed out, this case was an unusual application to a very specific set of misinformation circumstances in which defamation might apply: falsehoods that damaged individuals. In most disinformation campaigns, proving specific reputational damage would be difficult.
And, many lies are permitted under the first amendment, which broadly protects speech, including deliberate lies, made about more general subjects, such as a government or its policies, or scientific facts.
“Alex Jones was attacking individuals,” Stephen D Solomon, a law professor and founding editor of New York University’s First Amendment Watch, told an Associated Press reporter. “And that’s important. A lot of disinformation does not attack individuals.”
In addition, although the case has been put forward as a successful defamation prosecution, the legal point has not actually been tried in this particular instance. At the start, Jones decided to ignore orders to hand over evidence, so the judge gave a default judgment to the parents and moved straight to the damages phase. The free speech vs defamation arguments still haven’t had a full-on consideration in court.
Plus, this is a US case, launched within a US legal context of constitutional free speech protections and limitations. Europe offers a different context, without the same specific free speech protections, which are much stronger in the US than elsewhere. However, European countries also have some of the world’s most weighty – some would say, onerous – libel and defamation laws, which might potentially make them more powerful prosecution tools against misinformation.
Incoming European and Irish laws in the area of online safety may also dramatically change the legal landscape. However, their intent at this stage veers more towards increasing the responsibilities and liabilities of the platforms that carry misinformation, hate speech and other potential abuse, rather than enabling people or businesses to take personal cases against other individuals or organisations.
With all of this, there are pros and cons, mostly as yet undetermined. Societies everywhere are struggling with the malign influence and egregious effects of online disinformation, deliberate falsehoods and hate campaigns, while at the same time, they must grapple with the important freedom of speech, and where and how to fix its boundaries.
Censorship looks to exploit opportunities among the confusion that squats at the muddy intersection of politics, rights, shifting social mores, protest and a narrowing space for open rather than endlessly oppositional, embattled discussion. Opinions, especially online, become facts, and one person’s truth mandates another’s falsehood. This is a dangerous place to be, enabling further misinformation. As the famous protest song says: “Nobody’s right, if everybody’s wrong.”
And yet we cannot turn away from the urgent need to determine freedoms and constraints, and tackle the globe-spanning, life-ruining problem of disinformation.
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Taking aim through careful application of defamation law, as seen in the Alex Jones case, may well act as an inhibitor to some, who (unlike Jones) would be left in financial ruins from damages awards.
But some experts fear a chilling corollary effect on speech, including for legitimate news sites, and the growth of oppressive censorship, depending on how courts choose to interpret defamation.
Finding a fair, legal balance – wherever that might lie – will be an ongoing challenge as societies and technologies, and the consequent misinformation opportunities, develop, shift and change.
