In today’s political climate, the phrase “fake news” gets bandied about quite a bit. In addition to its more traditional meaning—news that is false, purposefully misrepresented or outright propaganda—fake news is also sometimes used to characterize any news published that the target or subject of disagrees with or dislikes. As the recent election cycle demonstrated, the proliferation of fake news has become an issue with which candidates and businesses alike must contend. But while the extent to which targeted misinformation can swing an election or otherwise affect a political environment is open to debate, for businesses, an ounce of fake can yield pounds of reputational and financial damage. The advent of social media has both catalyzed and weaponized the danger posed by all forms of fake news, and like so many technology-powered issues, the law lags behind in enacting new protections for businesses and individuals alike. Fortunately, some old causes of action may offer remedies for injuries inflicted by fake news stories.
Last month, a New York trial court dismissed a complaint against Donald J. Trump and others brought by political consultant and commentator Cheryl Jacobus that alleged, in part, a defamation claim (libel) based on tweets by Trump. While the case is notable because it involves Trump and his penchant for tweeting personal attacks, it is also notable because it provides additional guidance on how the courts are handling defamation claims based on statements made via Twitter (and other social media networks).