Amin Hosseini is an IPilogue Writer and an LLM Candidate at Osgoode Hall Law School.
On September 22, 2021, John Stossel, American libertarian journalist and television presenter, sued Meta Platforms Inc. and its independent fact-checkers for defamation. In the complaint, Stossel claimed that he uploaded two short video reports in which he interviewed experts about climate change, yet Meta (“Facebook”) publicly announced that Stossel’s reporting had failed the fact-checking process.
In the first video, "Government Fueled Fires," Stossel stated that poor policies were the major cause of this year's fires and highlighted the importance of the role of climate change in the annual forest fires in California. Facebook examined the forest fire footage and marked it with a "missing context" label using its fact-checking tools.
The second video, “Are We Doomed?,” questioned claims by “environmental alarmists” and elicited a similar response by Facebook’s fact-checking program — it was classified as "partly false information."
Stossel argued that the labels caused irreversible damage to his reputation, decreased the viewership of his content, and led to the loss of revenue. Regarding the first video, he claimed that Facebook attributed it to a statement that he did not produce; while for the second video, he stated that Facebook damaged his reputation by claiming he made false statements.
In response, Meta filed a motion for dismissal under FRCP rule 12(b)(6) and requested that the case be dismissed under California's laws governing strategic litigation against public participation (“SLAPP”). Briefly stated, SLAPP lawsuits seek to suppress and stifle critics to force them to cease voicing their opposition. Therefore, to safeguard freedom of speech, some jurisdictions have enacted anti-SLAPP laws.
The Court explained that the First Amendment protects expressions of subjective opinion and “not false statements or implied assertions of objective fact.” According to the judge, "[s]imply because the process by which content is assessed and a label applied is called a fact-check does not mean that the assessment itself is an actionable statement of objective fact.” In other words, the Court alluded that Facebook's fact-checking technology only reflects a subjective assessment of the "accuracy and reliability" of the claims and is not a statement of objective fact. Accordingly then, the Court dismissed Stossel's lawsuit.
It is noteworthy that the spread of disinformation is pernicious. One salient example was the COVID-19 pandemic, where disinformation led to noncompliance with public health measures, such as masking, and high levels of vaccine reluctance.
To combat “fake news,” governments must carefully regulate social media content. For instance, based on a newly enacted law, if social media businesses operating in Germany do not remove unlawful, racist, or defamatory posts within 24 hours, they risk hefty fines. Ontario addressed this issue by passing the Protection of Public Participation Act in 2015.
Since the definition of fake news and disinformation is so broad, however, overly strict laws may restrict freedom of speech and imposing limits on access to justice. Therefore, legislation must strike a balance between upholding critics' freedom of speech with others' rights to protect their reputations against false claims.
Further Reading
To balance the Constitutional rights of the parties, access to justice and freedom of speech, a Minnesota Court outlined a method for determining if the SLAPP law should be employed. You may read Middle-Snake-Tamarac Rivers Watershed District, Respondent, vs. James Stengrim, Appellant.