Who deserves the last laugh, the spoof website or those misled?
The joke was on me. Punk’d as if in an episode of Ashton Kutcher’s Candid Camera style television show. I had thought I was cool. I knew about satirical websites such as The Onion. I had even allowed myself a quiet smile about Facebook’s plans to ‘tag’ satire websites to alert people that the stories were not real. Surely that was overkill? Pandering to those less familiar with social media perhaps?
How wrong I was. How humbling the experience when I mistook a story from a satire site for the genuine article.
At the time, the prospect of a 15 year old being sent to jail for 25 years for a social media crime seemed, well, realistic. After all, it did happen in America! In hindsight though, it should have called for a second look. However, the photograph of a sobbing teen was heart wrenching, tugging the heart strings and blurring logic. The quality of the source website was good, and its masthead “NY Meta” realistic. The offending story can be found here.
Even more embarrassingly, I liked the “judge’s” comments so much, I tweeted them!
Judge Digsby to SWATTING gamer: Leave your petty pride in the realm of digital fantasy. Actions in the real world don’t have a reset button.
Thanks to more savvy social media users than me (a hat tip to @gabbo32), I was quickly alerted that the story was fake.
Whilst it might be small consolation, it appears I was not the only one fooled, as an article discussing the hoax reveals.
What are satire websites?
‘Satire’ websites are becoming more and more prevalent on social media. Some are genuinely satirical, such as The Onion. Their aim is to puncture some of the more foolish or excessive tendencies of our society. For the most part, we are in on the joke from the start, or close to it. For others, satire is a more distant cousin. The stories are little more than news hoaxes. They are close enough to the truth that the story is believable.
Even more challenging is the manner in which these stories are disseminated on social media. On a Twitter feed or via Facebook, they are mixed in with ‘real’ news sites. For the time poor, weeding out false stories from authentic news is becoming an ever more challenging task.
Facebook is experimenting with a tag so that satire sites are easily recognized. According to Mashable, Facebook decided to run a small test showing the text “[Satire]” in front of links to satirical articles after receiving feedback that people wanted a clearer way to distinguish satirical articles from others.
This has been criticized for ruining the joke before it has even begun. The Boston Globe (the real one I think!) regards Facebook’s experiment as well intentioned, but the equivalent of a comedian introducing a joke with, “Here comes another joke!”.
However, should we not see the comedian before we hear the gag? Without a cue, some jokes – particularly of the Candid Camera kind – are hard to detect.
Further, many of these so-called “satire sites” do not use wit, irony or sarcasm to expose vice or folly. They are simply fake stories. Imagine April Fools’ Day for 365 days a year.
Satire as a defence
It is easy to offer as an excuse for unlawful conduct: it was just a joke. In Australia, if it can be shown that the matter complained of was a satire or parody, then in trade mark and copyright law at least, a defence will be available.
The critical issue then becomes whether the “humour” satisfies this description. A mere hoax is unlikely to satisfy any description of satire or parody.
Satire is defined to mean “wit, irony or sarcasm used to expose and discredit vice or folly”. Satire’s close friend is ‘parody’, which is defined to mean “a piece of writing, music etc. that imitates the style of someone or something else in an amusing way”.
No excuse for misleading conduct
Even more importantly, a joke offers no excuse for misleading conduct under Australian law. Section 18 of the Australian Consumer Law does not, say, prohibit conduct likely to mislead or deceive … “unless it is really funny”. If a consumer is misled in trade or commerce, then that is all that is required to meet the test.
In the well known Australian Crocodile Dundee case, a person in a ‘Crocodile Dundee’ costume re-enacted the film’s famous “That’s not a knife” scene to advertise Pacific Dunlop shoes. The Full Federal Court rejected Pacific Dunlop’s claim of parody as an excuse. The representations were held to be likely to mislead or deceive. The court observed that the question of whether the allegedly infringing advertisement amounted to a parody was irrelevant. The only issue was whether the elements of the causes of action claimed had been made out: Pacific Dunlop v Hogan (Crocodile Dundee) (1989) 14 IPR 398
NY Meta offers nothing on its website to indicate it is a satirical publication. Contrast this to The Onion, which does contain the following text, albeit in its FAQs in tiny text at the bottom of the home page:
“Editorial
The Onion is a satirical weekly publication published 52 times a year on Thursdays. The Onion is published by Onion, Inc. The contents of this material are © Copyright 2010 by Onion, Inc. and may not be reprinted or re-transmitted in whole or in part without the express written consent of the publisher. The Onion is not intended for readers under 18 years of age.”
For many of these hoax news sites, there appears to be a monetary incentive indicating that genuine satire is not really in their thoughts. For instance, NY Meta is replete with advertising down the right margin of its page. One surmises its business model depends on being paid per click. This would likely satisfy the “trade or commerce” requirement of the Australian Consumer Law.
It might therefore be the case that “satire tags”, such as those Facebook is experimenting with, could actually offer satire sites protection from legal liability.
After all, if both sides are in on the joke, no one is misled. Then, the only debate will be about the quality of the joke itself.
The Social Litigator 
One Response to “Who deserves the last laugh, the spoof website or those misled?”
http://www.nymeta.com/about
Found this during a five minute google session to verify a different story that they had published. The spoof site gets the last laugh.