Himsworths Legal submission to DCMS Committee inquiry into “fake news”Posted on
Below is the full wording of our submission, in association with our client James Haskell, to the Department for Culture, Media and Sport Committee inquiry into “fake news”.
Department for Culture, Media and Sport Committee – “fake news” inquiry
Written Submission by Himsworths Legal Ltd (in association with our client James Haskell)
1st March 2017
- Executive Summary
Himsworths Legal are a media law firm, with particular expertise in reputation and privacy protection. The firm is widely experienced in dealing with the traditional media and regularly corresponds with newspaper and television companies and their legal departments, however, in this digital age, online and social media has become a large part of the work we do with clients.
The firm is particularly well-known for acting for sports clubs, organisations and individuals and is retained by a number of Premier League football clubs and sports organisations and acts for many well-known sports individuals. As part of our work with sportsmen and women we have had cause to deal with a great number of issues relating to the most prominent social media and blog platforms and the content which is hosted on these platforms.
The focus of our submission to the Culture Media and Sport Committee inquiry into “fake news” relates to our client James Haskell, a well-known international rugby player who has represented England 84 times. During the course of late December 2016 Facebook hosted a series of posts, which were promoted onto users’ timelines, which claimed that James had died at the age of 31. The posts were, of course, “fake news” used to promote a website which sells a muscle-building supplement.
We complained to Facebook in January 2017 and, in a response from its solicitors, Facebook declined (i) to take any responsibility for the posts; nor (ii) to provide any information regarding the sums earned by Facebook in promoting this fake news; nor (iii) to describe the measures they had put in place and would subsequently put in place to prevent this fake news and similar fake news; nor would they (iv) publish a correction and apology to our client.
The key to our complaint on James’ behalf is that these were not ordinary posts, posted anonymously and unmonitored by Facebook – they were Sponsored and Suggested Posts. This means that the individuals and/or company that had posted this fake news (under the pseudonym “Valerie French Dia Art”) had paid Facebook to promote the content onto the timelines of Facebook users who did not follow Valerie French Dia Art. Put simply – Facebook profited financially and used its algorithms to promote this fake news to its users by inserting it into their timelines.
In its response to our complaint the key statement from Facebook is as follows: “these contents were posted to Facebook at the direction of users and not Facebook officers or employees”. This statement is, in our view, legally wrong. In circumstances where Facebook has received payment from those users in order to place the posts onto the timelines of its users then Facebook effectively has taken control of the Posts and bears the responsibility of a publisher. The analogy we have used is that of an Editor of a newspaper. He/she chooses the optimum positioning and format of the articles that appear in his/her newspaper and assumes legal responsibility for the content of those articles. The only difference in what Facebook does is that the process is automated – based on Facebook’s highly sophisticated algorithms which assesses which users are likely to be enticed to click on a link which tells users that James Haskell has died.
Finally, in its response, Facebook repeated a typical direction of social media and blogsites. Facebook encouraged James to complain directly to the third party responsible for the website which the Facebook Posts linked to. The Facebook Posts linked to a website which continued the absurd lies about James – but this time not claiming that he had died but, instead, that he was facing prosecution for use of illegal supplements. The website itself imitated the website of reputed sports broadcaster ESPN but, of course, the site was a hoax and had nothing to do with ESPN. The article eventually descends into an attempt to persuade readers to purchase muscle building supplements.
A closer inspection of the website and the products sold reveal that the “company” behind the site is based out of PO Box numbers in Panama and Cyprus. The prospect of engaging with such a “company” is remote in the extreme. It is our view, when Facebook seek to profit from commercial relationships with such companies and apply their algorithms to promote these questionable products, that Facebook themselves must take full responsibility.
We have included, at §7 of this submission, a series of questions which we believe the Committee should ask of Facebook based on our and our clients’ (including James Haskell’s) experience.
Our day-to-day work regularly involves acting for sportsmen and women (and other individuals and companies) in relation to reputational and/or privacy attacks on social media or on blogs.
We have had significant success in working with social media sites – particularly Twitter, Facebook and Instagram – in having the following categories of posts and images removed: images which our client owns the copyright in; impersonation accounts; threats and harassment.
Where social media sites and blog sites will (in our experience) not intervene; is when false information is posted. To give one example, involving Twitter: a mischievous anonymous Twitter user set up a fake news account purporting to be from an invented newspaper called Forest News. The account set out to publish fake news every day. Once such item of fake news was about a young football player (an England youth international). The Tweet stated “Yet another Barclays Premier League player fails a drug test! [player name] tested positive for cocaine!”. The Tweet was a deliberate invention but highly damaging to our client. Twitter’s response is copied below:
Thank you for letting us know about your issue. We understand that you might come across content on Twitter that you dislike or find offensive. However, after investigating the reported content we found it was not in violation of Twitter’s private information policy (https://support.twitter.com/articles/20169991). As a result, it won’t be removed at this time.
If something has gone beyond the point of a personal conflict, whether it be online or offline, you should contact your local authorities so they can accurately assess the validity of the issue. It’s also a good idea to take screenshots of the offending Tweets if you choose to address this issue with your local law enforcement.
Pointing us in the direction of local law enforcement is unhelpful. A highly damaging lie is a civil matter and not something which should occupy the police in most circumstances. Social media and blog sites allow anyone to set up an account using only a webmail address. Identifying the perpetrator, on some occasions, can be near impossible.
In circumstances where clear and obvious lies were published on Twitter, with no legitimate purpose or free speech value, Twitter simply shrugged their shoulders.
This is typical for all social media and blog sites. In our experience the sites have less regard for the spread of false and damaging information, including distressing and harmful information, than they do for protecting commercial rights such as copyright. To use one clear example – where a client of ours was a victim of revenge porn (photos of him, which he had taken and sent on SnapChat, were uploaded to a series of blogs on Tumblr) Tumblr were unwilling to intervene on the basis of breach of privacy but were prepared to remove the photos on the basis of breach of copyright.
It is clear to us that social media and blog sites should take more responsibility for the false, damaging and distressing information which permeates their sites. Hiding behind the statement that complainants should take the matter up with anonymous individuals who cannot be traced means the problem permeates social media which leads us to the fake news crisis point that has now been reached.
- The James Haskell posts
We have included the posts (which we could find) that appeared on Facebook at the Appendix (pages 7-23) of this document.
Item One is the original post uploaded by the Facebook account Valerie French Dia Art. The post is marked up “Suggested Post” and later says “Sponsored”. What this means; is that it has been inserted into the timeline of Facebook users because the individual(s) behind Valerie French Dia Art have sponsored the post (i.e. paid Facebook to promote the post). See further explanation at §5 below.
At the bottom of the Suggested Post is a button marked “Share”. This gives Facebook users who see the Post the opportunity to share the post with his/her friends. Item Two shows copies of the posts which have indeed been shared. In the first example one user shares it with a friend and includes a shocked face emoji. The second example is another share between friends. In the third example the user expresses his disgust having realised that it is fake news.
Item Three shows the “ESPN” article which, rather than alleging James has died, falsely alleges that he is facing an investigation into the illegal use of banned substances. The article, which can be read on the Facebook platform (as the example shows), has the appearance of being a legitimate news article on the ESPN website (ESPN are a credible US sports network). Upon closer inspection the website has nothing to do with ESPN. The website is abusing the copyright and trademarks of ESPN to imitate the network’s website. The website address – http://espn.com-website.co/ – is a fake website. Upon inspection of the domain registry it is registered to the following address: Whoisguard Inc, PO Box 0823-03411, Panama. Whoisguard is a third party company which acts as a proxy to hide the identity of individuals or companies who are operating websites.
The article runs through the lie that our client has been caught using banned substances and, towards the end, seeks to convince the reader to invest in Hydro Muscle Max products. Unsurprisingly, we have researched and found a number of online comments and complaints stating that this scheme is a scam.
In summary, Facebook have facilitated (and received payment for this) the inserting of fake (suggested) news onto the timelines of their users, which suggests James Haskell has died. The purpose of uploading those shocking fake posts is to encourage Facebook users to click on the link where they will be taken to yet more (but different) fake news. That fake news is designed to persuade them to invest in muscle-building supplements which, according to our research and allegations placed online, is likely to result in them being scammed out of their money.
- James Haskell’s response
James was naturally concerned that fake news of his death was spreading on Facebook. What was of even greater concern to him was that these posts were also making the very serious false claims that he was using banned substances. He subsequently learned that the same false claims had been made about the NFL star Tom Brady.
In response, and in an effort to repair the damage, James posted a video online to make it clear that he was alive and well and this was all based on a fake news scam:
He was also highly concerned that Facebook had allowed this to happen. The fake news was a serious personal attack on him but also constitutes a dangerous trend of misinformation. He instructed us to write to Facebook to seek the following:
- An undertaking that (a) Facebook will not repeat the false claims and (b) that they will remove any other copies of the Posts or similar posts;
- An explanation of the policies in place to prevent fake news and to prevent Facebook from curating, promoting or otherwise publishing and profiting from fake news;
- Information and an account of revenue obtained by Facebook from this fake news about James;
- Agreement to publish an apology to James;
- Proposals for a payment to a charity of James’ choice in lieu of damages.
As set out at §7 below; Facebook refused all of these requests.
- Facebook – Suggested and Sponsored Posts
Facebook advertise this service here:
Facebook explain it in this way: https://www.facebook.com/business/a/boost-a-post
“Boosting posts is an effective and inexpensive way to get more exposure for your content. It’s a simple and easy process – posts are boosted right from your Facebook Page – and you can boost a post for any amount you want.
It’s a great way to get more people to see your posts, promote special events, offers and news, and to reach new audiences through targeting.”
The price of “boosting” posts in this way varies, depending on the number of people which the user wishes to target. Facebook explain targeting in this way:
- If you selectPeople you choose through targeting, you’ll be able to specify the people you show your boosted post to. Then, refine their locations, ages, genders and interests.
- If you selectPeople who like your Page and their friends, your boosted post will only be visible to those people. Note: this option is available if at least 50 people like your Page.
So, it is clear that Facebook offers, as a paid service, the ability to insert content onto the timelines of Facebook users with particular interests. Presumably, Facebook users who are interested in rugby or related sports and pastimes were targeted in this instance.
Facebook are encouraging and profiting from this practice. They are also fully in control of the practice and it is within their capability to monitor and/or refuse to carry content which breaches their Terms and Conditions or is unlawful.
- The law
The law of defamation in England and Wales is dictated by the Defamation Act 1996, as updated and amended by the Defamation Act 2013, and supplemented by the common law.
A publisher is responsible for content he or she has published unless he or she can prove one of the defences provided by the 1996 and 2013 Acts.
Section 5 of the Defamation Act 2013 provides a specific defence for website operators; as follows:
“5(2) It is a defence for the operator to show that it was not the operator who posted the statement on the website”
The difficulty which Facebook has, in allowing fake news to be posted as advertisements and suggested posts, is that Facebook has indeed posted the statements on their website. Whilst the words were originally produced by the individual or company wishing to promote the message, by allowing those individuals and companies access to Facebook’s algorithms to target and post, unsolicited, into Facebook users’ timelines, Facebook become a part of the publishing process.
The user behind Valerie French Dia Art did not have the capability of posting the fake news on the timelines in question without the intervention of Facebook. It is therefore not possible for Valerie French Dia Art to have been completely responsible for publication he/she was only able to complete publication / posting working in connivance with Facebook.
- Questions for Facebook (and other social media and blog service providers)
Despite what is set out above, Facebook deny they have any legal liability for the content complained of.
Quite aside from James’ legal rights, the approach taken by Facebook (and other social media and blog sites) raises important questions regarding misinformation provided to the public, and the huge influence that social media sites such as Facebook and Twitter have on public discourse.
For completeness, we should point out that Facebook stated in their letter that it: “has a facility for individuals to make complaints about posts which they consider to be in breach of their legal rights. This facility is located at https://www.facebook.com/help/contact/797573933590053”. For the reasons stated at §2 above this facility is largely useless where false information is being posted. Social media sites refuse to recognise a responsibility to remove false information (even where significant damage is caused).
Facebook’s response to us (regarding their liability for the content described) is that: “these contents were posted to Facebook at the direction of users and not Facebook officers or employees”. The suggestion therefore is that Facebook only accepts responsibility for content physically posted by its officers and employees. This effectively constitutes a refusal by Facebook to take responsibility for content which it has control and/or influence over (unless it is actually posted by an officer or employee). In this respect we have already asked Facebook the following questions (which they have refused to answer). We believe that these questions (which we have framed in a wider context for the purposes of this submission) stand to be answered by Facebook and will provide the Committee with clarity on the power Facebook has to influence content on its site:
We request that Facebook provide the following:
- An explanation of the policies and processes which it has put in place, or will now put in place, to ensure that deliberately false information (such as that relating to James Haskell) will not be curated, promoted or otherwise published by Facebook for Facebook’s commercial benefit;
Does Facebook have any rules, or mechanism, to prevent Suggested Posts or Sponsored Posts which are unlawful or in breach of Facebook’s Terms and Conditions.
- In relation to the Items in the Appendix; information, and an account of revenue, setting out the extent to which the Items were published by Facebook, including:
- The number of users targeted by the Items;
- The number of times the Items received clicks from Facebook users;
- The revenue received by Facebook in relation to the Items;
- The contract and terms between Facebook and the companies and/or individuals behind the Items;
- Details of all communications between Facebook and the companies and/or individuals behind the Items.
Our client gives his permission to this information, about the specific fake news which has affected him, to be provided by Facebook to the Committee as a sample to show the influence, control and profit made by Facebook from the promotion of fake news.
- In relation to fake news and demonstrably false and damaging information can Facebook provide statistics and details on the number of complaints it has received and the number of times it has removed false information from its website following a complaint.
ITEM ONE – Original “Suggested Post – Sponsored”
ITEM TWO – Shared Posts
ITEM THREE – “ESPN” ARTICLE