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Journal of International Media & Entertainment JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW PUBLISHED BY THE DONALD E. BIEDERMAN ENTERTAINMENT AND MEDIA LAW INSTITUTE OF SOUTHWESTERN LAW SCHOOL IN ASSOCIATION WITH THE AMERICAN BAR ASSOCIATION FORUMS ON COMMUNICATIONS LAW AND THE ENTERTAINMENT AND SPORTS INDUSTRIES Volume 8, Number 2 2019-2020 SYMPOSIUM FAKE NEWS AND “WEAPONIZED DEFAMATION”: GLOBAL PERSPECTIVES EDITOR’S NOTE ARTICLES Credibility-Enhancing Regulatory Models to Counter Fake News: Risks of a Non-Harmonized Intermediary Liability Paradigm Shift Teresa Rodríguez de las Heras Ballell Criminal Defamation: Still “An Instrument of Destruction” In the Age of Fake News Jane E. Kirtley & Casey Carmody Stemming the Tide of Fake News: A Global Case Study of Decisions to Regulate Amy Kristin Sanders, Rachel L. Jones, and Xiran Liu Legal Responsibility for Fake News Tommaso Tani JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW VOL. 8, NO. 2 ■ 2019–2020 JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW Volume 8 Number 2 2019–2020 PUBLISHED BY THE DONALD E. BIEDERMAN ENTERTAINMENT AND MEDIA LAW INSTITUTE OF SOUTHWESTERN LAW SCHOOL IN ASSOCIATION WITH THE AMERICAN BAR ASSOCIATION FORUMS ON COMMUNICATIONS LAW AND THE ENTERTAINMENT AND SPORTS INDUSTRIES Mission Statement: The Journal of International Media & Entertainment Law is a semi- annual publication of the Donald E. Biederman Entertainment and Media Law Institute of Southwestern Law School in association with the American Bar Association Forums on Communications Law and the Entertainment and Sports Industries. The Journal provides a forum for exploring the complex and unsettled legal principles that apply to the production and distribution of media and entertainment in an international, comparative, and local context. The legal issues surrounding the creation and dissemination of news and entertainment products on a worldwide basis necessarily implicate the laws, customs, and practices of multiple jurisdictions. The Journal examines the impact of the Internet and other technologies, the often-conflicting laws affecting media and entertainment issues, and the legal ramifications of widely divergent cultural views of privacy, defamation, intellectual property, and government regulation. Subscriptions: Print subscriptions are available at an annual rate of $US 50 (domestic) or $US 60 (foreign). Please direct inquiries to the Biederman Institute at Southwestern Law School, 3050 Wilshire Boulevard, Los Angeles, California 90010, (213) 738-6602, or send an email to [email protected]. Back issues are available for $US 30.00 per copy plus $US 5.95 for shipping and handling. Disclaimer: The opinions expressed in the articles published in the Journal of International Media & Entertainment Law are solely those of the authors and do not necessarily reflect those of the Donald E. Biederman Entertainment and Media Law Institute, Southwestern Law School, the American Bar Association, the Forum on Communications Law, or the Forum on the Entertainment and Sports Industries. Law School: For information about the Biederman Institute or Southwestern Law School, please contact Professor Orly Ravid, Southwestern Law School, 3050 Wilshire Boulevard, Los Angeles, California 90010, (213) 738-6842, or send an email to [email protected]. Membership: For information about membership in the Forum on Communications Law or the Forum on the Entertainment and Sports Industries, please contact the ABA Service Center, 321 North Clark Street, Chicago, Illinois 60654-7598, (800) 285-2211, or send an email to [email protected]. Permission to Reprint: Requests to reproduce portions of this issue must be submitted by email to [email protected]. Submission Guidelines: Submission guidelines are printed on the inside back cover of each issue. © 2020 Southwestern Law School The Journal of International Media & Entertainment Law is published twice a year by Southwestern Law School, in cooperation with the American Bar Association. ISSN: 1556-875X. Postmaster: Send address changes to the Biederman Institute at Southwestern Law School, 3050 Wilshire Boulevard, Los Angeles, California 90010. JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW INTERNATIONAL COMPARATIVE LOCAL VOLUME 8 NUMBER 2 2019–2020 SUPERVISING EDITOR Michael M. Epstein Southwestern Law School BOARD OF EDITORS Peter Strand, Chair David M. Giles, Chair ABA Forum on the ABA Forum on Entertainment and Sports Industries Communications Law Peter Bartlett David Goldberg Nathan Siegel Minter Ellison Lawyers University of London Levine, Sullivan, Koch & Schulz Eric S. Brown Robert Lind Mark Stephens Franklin, Weinrib, Rudell & Vassallo, P.C. Southwestern Law School Howard Kennedy LLP Chunghwan Choi Robert Lutz John Tehranian Lee & Ko Southwestern Law School Southwestern Law School J. Alexandra Darraby Michael Scott Cydney A. Tune The Art Law Firm Southwestern Law School Pillsbury Winthrop Shaw Pittman, LLP Jeff Gewirtz Brian A. Rosenblatt Kurt Wimmer NETS Basketball/Brooklyn Bryce, Downey & Lenkov LLC Covington & Burling, LLP Sports & Entertainment Kevin Goering Kyu Ho Youm Norwick, Schad & Goering University of Oregon SUPERVISING STUDENT EDITORS Grace Khanlian & Lauren Landau STUDENT EDITORS Cayla Bergman Alexandra Figueroa Mary Fitilchyan Darian Hogan Rodrigo Luna-Jauregui Mariam Nazaretyan Jessika Song PUBLISHED BY THE DONALD E. BIEDERMAN ENTERTAINMENT AND MEDIA LAW INSTITUTE OF SOUTHWESTERN LAW SCHOOL IN ASSOCIATION WITH THE AMERICAN BAR ASSOCIATION FORUMS ON COMMUNICATIONS LAW AND THE ENTERTAINMENT AND SPORTS INDUSTRIES JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW INTERNATIONAL COMPARATIVE LOCAL VOLUME 8 NUMBER 2 2019–2020 SYMPOSIUM FAKE NEWS AND “WEAPONIZED DEFAMATION”: GLOBAL PERSPECTIVES Contents Editor’s Note MICHAEL M. EPSTEIN ARTICLES 129 Credibility-Enhancing Regulatory Models to Counter Fake News: Risks of a Non- Harmonized Intermediary Liability Paradigm Shift TERESA RODRÍGUEZ DE LAS HERAS BALLELL 165 Criminal Defamation: Still “An Instrument of Destruction” In the Age of Fake News JANE E. KIRTLEY & CASEY CARMODY 205 Stemming the Tide of Fake News: A Global Case Study of Decisions to Regulate AMY KRISTIN SANDERS, RACHEL L. JONES, AND XIRAN LIU 233 Legal Responsibility for Fake News TOMMASO TANI PUBLISHED BY THE DONALD E. BIEDERMAN ENTERTAINMENT AND MEDIA LAW INSTITUTE OF SOUTHWESTERN LAW SCHOOL IN ASSOCIATION WITH THE AMERICAN BAR ASSOCIATION FORUMS ON COMMUNICATIONS LAW AND THE ENTERTAINMENT AND SPORTS INDUSTRIES Editor’s Note This issue is the second of three devoted entirely to articles from our 2018 symposium conference, entitled Fake News and “Weaponized Defamation”: Global Perspectives, a global participation event sponsored by the Journal in partnership with the Southwestern Law Review and Southwestern International Law Journal. In 2020, the topics in these articles resound with new urgency, as countries, including the United States, face the scourge of disinformation in their efforts to contain a woldwide coronavirus pandemic. The first article, “Credibility-Enhancing Regulatory Models to Counter Fake News: Risks of a Non-Harmonized Intermediary Liability Paradigm Shift,” by Professor Theresa Rodríguez de las Heras Ballell, posits a need for uniformity in the reassessment of online liability policies to enlist digital intermediaries and platform operators in the battle to enhance credibility and counter misinformation. “Criminal Defamation: Still ‘An Instrument of Destruction’ in the Age of Fake News,” by Professor Jane E. Kirtley and Casey Carmody, describes how criminal defamation statutes are a cudgel against a free press that hobbles efforts to curb fake news in the U.S. and abroad. In “Stemming the Tide of Fake News: A Global Case Study of Decisions to Regulate,” Professor Amy Kristin Sanders and co-authors Rachael L. Jones and Xiran Liu categorize three approaches to addressing fake news in social media: private-sector scrutiny, government-run scrutiny, and, the authors’ main focus, legislation that would punish fake news purveyors with fines and jail time. And, finally, Tommaso Tani offers “Legal Responsibility for False News,” a deep dive into the nature of fake news and the legal infirmity of efforts to regulate it beyond existing criminal and tort remedies. In the summer of 2020, the Journal will publish its last set of fake news and weaponized defamation articles revised from papers delivered at our 2018 conference. For this issue, I want to acknowledge the hard work and can-do spirit of the Journal’s student editors, who persevered to complete this volume, and much of the next one, from the socially distant confines of their homes. Special thanks also to Emily A. Rehm, an adjunct professor at Southwestern and a former student supervising editor, and to my long-time Biederman Institute colleague Michael D. Scott. This volume is dedicated to Professor Robert C. Lind, the fissile material that sparked the chain reaction that became the Biederman Entertainment and Media Law Institute at Southwestern Law School. Your comments, suggestions, and feedback are always welcome. Professor Michael M. Epstein Supervising Editor CREDIBILITY-ENHANCING REGULATORY MODELS TO COUNTER FAKE NEWS: RISKS OF A NON-HARMONIZED INTERMEDIARY LIABILITY PARADIGM SHIFT Teresa Rodríguez de las Heras Ballell* Safe harbor provisions for electronic intermediary service providers represent a key common policy in worldwide Internet regulation. Although there are disparities in scope, applicable conditions, and effects, intermediary liability exemptions have been extensively incorporated
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