The concept of “fake news” has garnered substantial attention in recent years, evolving from its satirical literary origins into a passionately criticized Internet phenomenon. Whether described as rumors, “counterknowledge,” misinformation, “post-truths,” “alternative facts” or just plain damned lies, these false statements of fact typically are published on Web sites and disseminated via social media for profit or social influence.
While fake news publishers are regularly taken to task in the court of public opinion, we are unaware of any prior structured discussion of the unique legal issues surrounding the publication of fake news. This article evaluates examples of fake news publications to present a workable definition of “fake news” for purposes of our legal analysis. We then explore many of the legal and regulatory hurdles facing online fake news publishers. This article concludes by discussing some of the legal protections available to fake news publications and publishers of other online content.