MARK TEXTOR: It may be time to call in the sheriffs on the fake news cowboys

Pat Garrett, James Brent and John W Poe, sheriffs of Lincoln County, c1880-1882 (1954). The three men were involved in the capture and killing of notorious outlaw Billy the Kid. (Photo by The Print Collector/Print Collector/Getty Images)

There is no law, no restraint in this seething cauldron of vice and depravity.”

– The New York Tribune describing America’s lawless Wild West in the 19th Century.

Substitute “lies and vanity” for “vice and depravity” in the quote above and you could describe the wild world of the internet and “post truth” politics today.

Just as the law and social order struggled to catch up with the migration west, it is both are struggling with the proliferation of alternative news sources.

The lies and political vanity have arisen for the same reasons that lawlessness rolled across America’s Wild West.

Mining camps and cowboy towns appeared too quickly for the law to establish itself in practice or culture, just as truth checking websites can’t keep up with all the new fake news websites.

Meanwhile vigilantes decided to take the law into their own hands this making the establishment of true order very difficult. Similarly, truth policing websites’ efforts are sporadic and add to a sense of anarchy.

In the Wild West there was too large an area to make universal policing possible, with poor transportation making this worse. Similarly poor coordination between truth keeping websites makes a coordinated response to geography-specific fake news difficult.

In the Wild West it wasn’t just gunslingers and murderers that were a problem – there was conflict between different stakeholders: railways v cattleman v homesteaders v Native Americans.

Screen warriors

Similarly, on the internet, deeply embedded partisan screen warriors have an incentive to create conflict where it doesn’t exist in order to monetize their sites or to create a sense of self-worth through traffic.

More structured law and order approaches to the Wild West brought an order that wasn’t possible through sporadic law enforcement and vigilantism.

Eventually, locally focused policing and structured local government administration allowed more civilized towns.

In this way a more structured local approach to truth may help.

The internet is still somewhat unrepresentative of the law-abiding citizen. As happened in to the Wild West, more ordinary settlers coming into the political discourse online might have a civilizing effect, as moderating voices seek to have a more intelligent conversation.

As Richard Haridy says in this piece:

“Fake news has existed as long as people have told stories, but with the internet dramatically democratizing the nature of information transmission, now more than ever, the onus is on all of us to become smarter, more skeptical and more critical.”

Regulating fake news might seem like an impossibility in the Wild West of the internet where there is always money to be made. Compounding this are the inherent pitfalls with any media regulation and even defining fake news.

The problem with attempts to regulate media previously in Australia failed because they targeted the wrong type of media.

The Gillard government attempted to introduce further media regulation and in doing so bizarrely picked a fight with the country’s biggest media organisations before an election.

Former prime minister Julia Gillard. Photo: Getty / Ian Hitchcock (File)

That attempt also largely disregarded the mechanisms that already regulate large media organisations.

This includes self-regulation through the likes of ACMA, but also self-regulation between media organisations. As tedious as the squabbling between news organisations like The Australian and ABC are, they do periodically serve as a check and balance on each other’s reporting and influence.

Perhaps most importantly, there is the law itself.

Complaints that media in this country is not regulated well enough ignore the fact subject to a myriad of reporting restrictions, ranging from national security, to contempt of court to defamation.

But defamation (or any other court ordered sanctions against the media) are only as effective as the ability of a news organisation to be sued.

Finding a prominent reporter who works for Fairfax or News Corp is a relatively straight forward proposition. Tracking down a shadowy fake news site built by two guys in Georgia is going to be a lot harder.

Further, the creators of some of the most prominent fake news stories in America have been given the green light to continue after being told they’ve broken no laws.

Both Facebook and Google announced after the US election they would ban fake news sites from using their advertising networks. But this can only be considered a stop-gap measure because where there’s an audience, there’s clicks to be had – and there’s money to be made.

Market failure

A situation has arisen where the largest contemporary threats to media and reporting face no regulation from the law.

Law steps in where market failures occur. In in the case of fake news there is a clear case for market failure.

Harvard Law professor Noah Feldman recently observed that fake news, under current market conditions, could actually become the norm and questioning whether the First Amendment should extend to fake news.

Part of the problem in regulating wholly fake news is that we treat it like another type of media regulation.

A wholly fake news story on a fake news website like The Christian Times newspaper shouldn’t be treated like media.

In the Australian context there are regulatory bodies and laws that could be used to protect against the impending threat of fake news.

The ACCC already has powers to regulate and, if need be, prosecute companies for flagrant false advertising. ASIC has similar powers in relation to misleading and deceptive conduct.

Rather than think about the policing of fake news in the context of regulating media and journalism, we should be able to use the law that treats it like other snake-oil salesmen in the Wild West.

Mark Textor is co-founder of campaign strategy firm Crosby|Textor, which advises the Turnbull government. He also chairs the Amy Gillett Foundation. You can follow him on Twitter.

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