Fake News is No News: Is "Unpublishing" the New "Retraction"?

In today’s editorial Kathy English, Public Editor at The Toronto Star asks “When can ‘news be erased?” :

“When the Associated Press reported last December that iconic Irish musician Van Morrison had fathered a child at age 64, news organizations around the world jumped on the story.

Word that Van the Man, whose eldest child is 39, was a new daddy became a news flash that went viral. The story was published by mainstream newspapers and websites, including thestar.com, which highlighted the “news” on its home page with the headline ‘Van Morrison, 64, welcomes baby son.’

As fans of the reclusive rocker now know, that story turned out to be false – fake news, writ large.”

In her editorial, English raises a legal and ethical problem for traditional journalists and bloggers alike:

“In a digital world, where news lives virtually forever and is easily accessible through online search engines, what becomes of fake news? Should credible news organizations kill online articles found to be false and possibly harmful to the reputations of the subjects of those reports?”

Traditionally, an unverified, incorrect or fake news story would result in a printed retraction by the newspaper or media outlet, sometimes on the front page and other times buried in the classifieds.

As English explains, www.thestar.ca was taken in by the web hoax. However, what is more surprising was the Star’s response. Apparently, a British web policing firm called Web Sheriff sent the Star an email take down notice on Morrison’s behalf, requesting that the original news story be removed. According to English:

“Following consultation with the Star‘s lawyer, we did so, even though the Star has a policy that says we generally do not “unpublish” content from our websites.”

The rest of the editorial outlines the Star’s “unpublishing“ policy (the Orwellian phrasing is somewhat amusing) and lauds the Fifth Estate’s commitment to upholding the ideals of “transparency and credibility with readers.” In English’s own words: “Ideally, news content should not simply disappear. History should not be erased.”

Journalistic ethics are not my forte. However, what is important for journalists and bloggers alike are the ramifications of this new trend of “web policing”. As some readers already know, the Supreme Court of Canada recently weighed in on the emergent role of bloggers in Grant v. Torstar Corp., 2009 SCC 61 (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 a (“Quan”), (see my previous post here) recognizing the “Defence of Responsible Communication on Matters of Public Interest” (also referred to as the “responsible journalism” defence”) into the law of defamation in Canada.

In a similar vein, the issue of intermediary liability for hyperlinking defamatory material will be considered by The Supremes in Crookes v. Newton: (see my previous posts here and here).

What should journalists and bloggers do when confronted with a fake news story, or web hoax? Let’s hope that the knee-jerk response is nothing close to the recent fiasco by self-proclaimed ethics guru, Jack Marshall. 

Should online reputation management or “web policing” be delegated to private internet firms such as a Web Sheriff? Will the courts read in a “CTRL-ALT-DEL” or “tabula rasa” requirement into the responsible journalism defence? What legal responsibility will non-journalist bloggers have to delete content that is ultimately found to be false?

These questions are only the tip of the iceberg as courts try to keep apace with technological changes wrought by the information society and as traditional news publishing is quietly overtaken by Web 2.0 digital publishing, RSS news aggregators and blogging curators.

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