With the 1,000 day countdown to the 2020 Olympic Games now in full swing, it has been reported that the Tokyo Organising Committee of the Olympic and Paralympic Games is actively monitoring social media trends with a view to combating the spread of “fake news”.  The term “fake news” has become something of a phenomenon in recent months and the potential harm it can do has become a major topic of discussion in society. In addition to the wider risks of societal harm, businesses increasingly appear to be falling victim to fake news campaigns, from fake sales promotions to false reports of dangerous products on the market.  Whilst ‘rumours’ and ‘gossip’ have always been potentially damaging, the ability for immediate and widespread dissemination on ‘alternative’ online news platforms makes inaccurate publicity in the modern age a pressing concern.

For a sports event, where public opinion has the potential to drastically influence ticket sales, viewing figures and more, “fake news” has become a highly relevant consideration.  The Tokyo 2020 Organising Committee has met this challenge head-on, indicating that its aim is to address factual inaccuracies at an early stage and to engage proactively with public opinion:

“In modern society, the voices of the public can be seen… Therefore we don’t believe that we will be able to spend the next 1,000 days until the opening ceremony unscathed.”

Examples, of this approach in action was its swift responses to criticism regarding the provision of wood by local governments for use in the roof and columns for the Olympic “village plaza”, the opening of the volunteering application system, and an initiative to collect metal from unwanted cellphones and electronic devices to help create the medals.  The Organising Committee was able to monitor negative trends on these topics, respond accordingly and correct inaccuracies and misconceptions at an early stage. From a PR angle, the approach seems thoroughly sensible.

On the legal side, however, when stories based on factual inaccuracies do spread and become more damaging, addressing “fake news” can be tricky.  Indeed, the UK government’s Media and Sport Select Committee launched an inquiry on the subject early this year and the European Commission announced only yesterday that it would also be launching a public consultation on “fake news and disinformation”.  Consultations such as these will aim to assess the impact and risk of so-called “fake news”, identify ways of addressing and/or regulating its dissemination, and enabling individuals to identify fake news for what it is.

At present, in the UK, there is no regulatory body with jurisdiction over online news in general. IPSO and IMPRESS regulate newspapers (including online) that sign up to their terms, and OFCOM regulates broadcast media but there is a clear gap In the current absence of any specific legal or regulatory regime addressing the issue, the legal avenues for addressing fake news must be framed by reference to ‘traditional’ causes of action such as:

• Defamation

A claim for defamation will be available only where a statement has been made which lowers the claimant in the estimation of right-thinking members of society generally or is likely to affect a person adversely in the estimation of reasonable people generally, and its publication is likely to cause serious harm to the claimant’s reputation.  Under section 1(2) of the Defamation Act 2013, where the claimant is a body which trades for profit (as will be the case for most organisations delivering major events such as the Olympic Games), harm will not be deemed sufficiently serious unless it has caused or is likely to cause the claimant serious financial loss.  It is not difficult to see that evidencing serious financial loss is therefore a difficult threshold to meet, particularly in relation to what one might consider “fake news”, as the generally-held definition of “fake news” covers a far wider category of publications than would give rise to a successful claim for defamation.

• Intellectual property infringement:

Unauthorised use of event copyright material might give rise to claim for copyright infringement. Similarly, unauthorised use of event trade marks may give rise to a possible claim for trade mark infringement, but only where the use causes confusion on the part of the public as to the origin of goods or services.  As such, whilst this might assist in a scenario such as the fake sales promotion mentioned above, this again represents a relatively narrow option in relation to much of what we might consider “fake news”.

• Criminal acts:

Where the news item in question is disseminating hate speech or security/terror threats, its content may be subject to criminal laws. In such cases, specific laws requiring more proactive monitoring by social media platforms and the content can be reported directly to the police. Again, however, much of the content we might consider “fake news” falls outside the remit of criminal legislation.

In view of the above, whilst we may recognise “fake news” as a potentially highly damaging phenomenon, traditional legal and regulatory remedies often do not provide an easy means of combatting the issue.  Even where a legal remedy is available, deploying it at an early enough stage is not always possible and, even if successful, the reality of online news is that it may already have been viewed by huge audiences.   In meantime, the PR-focussed approach adopted by Tokyo  (including pro-active monitoring for potentially malicious dissemination of factually inaccurate information) now appears to be a necessary and sensible part of running a major event such as the Olympics.