Monday, February 6, 2023
Leslie Y. Garfield Tenzer, Pace University School of Law, has published Destroying Defamation. Here is the abstract.
Fake News is destroying defamation. The recent proliferation of rushed journalism, online conspiracy theories, and claims that almost every news story is, in fact, “Face News” have created a desert of veracity. Widespread public skepticism about even the most mainstream Internet reporting means plaintiffs will have difficulty convincing jurors that third parties believed any reported statement to be true. Without such proof, it's almost impossible for a plaintiff to prove the elements of defamation. To establish defamation, a plaintiff must show that the defendant “published” to a third party a false statement, purporting to be fact, which caused reputational harm. Hyperbolic language or other indications that a statement was not meant to be taken seriously are not actionable. Today’s understanding that everything on the Internet is susceptible to manipulation is destroying defamation. This article explains the unforeseen consequence of labeling news as “fake.” The article begins with a historical review of Fake News, concluding with an understanding of the phenomenon in its current iteration. It follows with a discussion of the tort of defamation. It explores the uniqueness of proving online statements as libel or slander. It illustrates how plaintiffs bringing defamation claims for Internet statements will have difficulty persuading a judge that the message was factual and not merely hyperbole. Even if the judge finds a statement to be fact, allowing the issue to move to the jury, a plaintiff in today’s Fake News climate is unlikely to convince a jury that a reasonable person would find the statement defamatory. The abundance of fake news, the media’s rush to publish, and external attacks on credible journalism have created a problematization of truth among members of society. The potential for defamatory harm is minimal when the veracity of a news story is questionable. This paper argues that the presence of Fake News is a blight on this cause of action that threatens to erode defamation to the point of irrelevance.
Download the article from SSRN at the link.