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‘See You In Court’: The Fight Against Disinformation Turns to the Legal System
By
November/December 2022 Issue

TERMS OF ART

It quickly became apparent that I would need to find out which terms of art are being used to describe and discuss these phenomena. “Counter-disinformation” seems to be a relatively new term that is not widely use. Therefore, in addition to searching counter-disinformation or fake news or misinformation lawsuits , another course of action to take would be to investigate free speech and defamation litigation and work backward from there. This would include adding in relevant terms to parse out cases in which first amendment rights are being discussed in the context of disinformation, fake news, hoaxes, and conspiracy theories.

First, it is important to know of current counter-disinformation suits that have been filed and to track them accordingly as they wind their way through the courts. To create your own interactive spreadsheet of cases and developments, you can begin by conducting searches in docket databases to identify cases that have been filed. A search of all dockets on Bloomberg Law on Aug. 8, 2022, using this strategy resulted in thousands of cases:

((disinformation or misinformation or hoax! or conspiracy or malinformation or ™fake news ∫ ) n/10 (defamation or libel or slander* or profit! or ™de-value ∫ or ™de-valued ∫ or devalue!))

I felt relatively confident that these terms worked, since both Furie v. Infowars and Heslin v. Alex Jones showed up in my result list. However, the returned set was so voluminous, it seemed unmanageable. There were more than 1,000 results from the last 12 months alone.

Brainstorming options to get a manageable result led me to investigate coding for case type. However, it underscored the point that “nature of suit” is not a field that will work as the only search criteria for these types of searches. On Bloomberg Law, nature of suit is available for U.S. district and appellate courts; the nature of suit identified for Furie v. Infowars was copyright. Other appropriate natures of suit would be patent and trademark.

For Heslin v. Jones, since it was in a state court, the nature of suit field was not a search-filtering option. However, there was a “case type” field. The identified case types for Heslin v. Jones were defamation, slander, and libel. Other applicable case types on Bloomberg Law include intellectual property, copyright, and patent; those types of cases involve financial damages, which are crucial to proving intention of malice. Since these fields are not standardized across courts, we shouldn’t rely solely on them when compiling a list of cases, but should instead use them as an additional filter when searching a broad array of case types. Other filters that can be used include keywords for outcome. Another term, expert witnesses, can be used to determine if experts were retained as well as to examine the arguments used. Further, if specific types of disinformation use are of interest, additional keywords for those types, or the mediums upon which they were deployed (YouTube, niche social media platforms, websites) can be used.

DOCKET SEARCHES

In order to be more comprehensive, docket searches for count er-disinformation suits need to be supplemented with news searches. For example, another notorious suit against Alex Jones, Chobani LLC v. Alexander Jones, CV42-17-1659, Fifth Judicial District, Idaho, does not have a docket on Bloomberg Law or the dockets database of Westlaw. It is a fairly important case of this type of litigation, however. The suit alleged that Jones used Infowars and other platforms to further the claim that the Chobani yogurt company “imported migrant rapists” to work in its Twin Falls, Idaho, factory, and that it brought “crime and tuberculosis” to the community. The lawsuit was resolved, and Jones issued a public apology, but not before thousands of people had viewed content with the false accusations (law360.com/articles/925435/radio-host-jones-eats-words-to-end-chobani-defamation-suit; need to be registered to view; account required for access).

A basic search in all publications on Factiva for this strategy

((counter w/2 disinformation) near10 (lawsuit* or sue or sued or suing or litigat*))

uncovered the February 2022, Corporate Counsel article by Ferraro, Hogue, and Tompros, which lists several counter-disinformation lawsuits, which gives us a head start in creating our spreadsheet. We could set up tracks and alerts in Bloomberg Law, Law360, Westlaw, or others to follow the developments in the cases. We could also set up an alert in Factiva for results from this strategy to try to find new cases as they are filed. The broader strategy of

(hlp=(((disinformation or misinformation or hoax* or conspiracy or malinformation or (™fake news ∫ )) near10 (defamation or libel or slander* or profit* or ™de-value ∫ or ™de-valued ∫ or devalue*)))) and (hd=(court* or sue or sued or suing or lawsuit* or litigat* or file*)) and date after 12/31/2

uncovers relevant news from the current year and could be used to set up an additional alert to track filed cases. It seems to be an effective strategy and one that reinforces previous research, which has found that the most pervasive and damaging disinformation activities are the handiwork of a handful of bad actors with long and deep reach. Just as there are only 10 websites responsible for 69% of all climate change denial content interactions on Facebook (the infamous “toxic ten,” as identified by the Center for Countering Digital Hate; see counterhate.com/research/the-toxic-ten), almost half of the results for the above search strategy have “Jones” in the headline.

FACTIVA EXPERT SEARCH

I also tried to see if a Factiva expert search would work. I chose Fake News Phenomenon (English), and added this to the strategy:

(hd=(lawsuit* or sue or sued or suing or litigat* or file* or court* or (class w/2 action*))) and date after 12/31/21

Unfortunately for this research purpose, most of the results were from publications originating in or focusing on the U.K., possibly because of its easier standards for burden of proof on harm to reputation (McFall, M., “American and English Libel Law—Which Approach Is Best?” European Journal of Law and Technology , v. 3, n. 3, 2012; ejlt.org/index.php/ejlt/article/view/173/261#:~:text=America%20favours%20protecting%20free%20speech, the%20proliferation%20of%20libel%20tourism).

It is also important to track introduced and passed legislation that could make counter-disinformation suits either easier or harder to file. A search in the Proposed and Enacted Legislation file for all federal and state jurisdictions on Westlaw for this strategy

misinformation or disinformation or ™fake news ∫ or malinformation

in the summary field results in a list of introduced as well as signed bills. You can then choose those of interest and set up a track to follow developments and changes to see if they become signed law or are subsequently revised or even repealed. If any individual bills are of particular note, you can also create news search alerts on Factiva, Law360, or others, as well as follow those lawmakers who introduced them and who seem to have a particular interest in anti-disinformation statutes. As a side note, it is surprisingly difficult to pinpoint exactly which House and Senate committees and subcommittees are tasked with monitoring fake news; it seems that every elected official has raised concern at one time or another. This search in Factiva ((house or senate) near5 (committee* or subcommittee*) near5 (disinformation or misinformation or (fake news))) and date after 12/31/21 resulted in articles mentioning a plethora of interested lawmakers, along with hearings being held and/or investigations being launched by committees and subcommittees as varied as the Senate Judiciary, House Select, House on Oversight and Reform, Senate Foreign Relations, and House Foreign Affairs, just to name a few. Therefore, it is probably best to cast a wide net, looking for any activity, drilling down from there, and then setting up news alerts according to your findings.

LITIGATION MAY NOT FIX DISINFORMATION

Using litigation to fight disinformation is not a quick, easy, or guaranteed fix. Filing a lawsuit is always a roll of the dice: The adverse parties in these matters will always try to use the argument that they have a right to free speech and that their activities are constitutionally protected. Also, as Kevin Roose wrote in The New York Times, “Social media companies can help curb the spread of harmful lies by making it harder for fabulists to amass huge audiences. But they have their own limitations, including the simple fact that conspiracy theorists have gotten more sophisticated about evading their rules. If you draw a line at claiming that Bigfoot is real, attention-seeking cranks will simply get their millions of views by positing that Bigfoot might be real and that their audiences would be wise to do their own research to figure out what Bigfoot-related secrets the deep-state cabal is hiding” (nytimes.com/2022/08/06/technology/alex-jones-conspiracy-theories.html).

There is also the unintended consequence that when a lawsuit is filed, the issues involved get even more press attention and gain even more traction than if the victims had remained silent. The Streisand effect is named for singer and actress Barbra Streisand, who, in 2003, sued to have an aerial photo of her home removed from a website. Prior to the suit being filed, the photo had been downloaded six times. After it was filed, more than 400,000 downloads were recorded (psychologytoday.com/us/blog/the-red-light-district/201912/understanding-the-streisand-effect).

A BALANCING ACT

Tompros concedes that disinformation lawsuits filed to right wrongs and uncover truths are a balancing act, but “that balance does shift in favour of using counter disinformation litigation more, and the upside begins to outweigh the downside.” He believes it is work worth doing. “Whether that ultimately helps to push back against the post-truth era more broadly is yet to be seen. But the courts are doing their part,” he said. He is calling on people to “stand up and fight and say ‘I’m not going to let you get away with your lies. I’m going to call you on it, using the legal system, using the media, using every available tool.’”

For librarians, this call to action requires careful consideration and can lead to an examination of the rights of freedom and expression and the consequences of damages due to disinformation. Luckily, our ability to provide comprehensive, creative, and thorough research on any subject makes us well-positioned to answer that call.

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Amy Affelt is director, Database Research, Compass Lexecon and author of The Accidental Data Scientist: Big Data Applications and Opportunities for Librarians and Information Professionals (Information Today, 2015).

 

Comments? Contact the editors at editors@onlinesearcher.net

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