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While some fake-news websites are just chasing profits, it’s clear a subset of them have been doing something more akin to content marketing, using made-up headlines as a form of persuasion. The phenomenon raises uncomfortable legal questions for Facebook, the venue of choice for fake-news purveyors. The social network has proven to be a zone where campaign finance rules are difficult if not nearly impossible to enforce, at least from outside.
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“I think there’s some lag with the FEC catching up with the times,” says political lawyer Troy McCurry [of The Gober Group], who served as counsel to the FEC’s Republican commissioners at times from 2010 until this year. Not all commissioners are active on social media, he notes.
That is not to say regulations do not apply. “If an ad on any social media platform contains words of express advocacy, those ads would fall under the FEC’s regulations, including its disclosure requirements and foreign national expenditure ban,” says McCurry.
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Facebook appears less than eager to grasp the baton of self-regulation. Asked if the company requires political ads to bear disclaimers describing their sources or creators, a Facebook spokesman directed Inc. to a section of its ad policies that addresses laws generally. The guidelines do not specifically address FEC requirements for disclaimers on certain political ads, or for prohibition of foreign nationals from purchasing certain types of ads.
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There is no legal mandate for Facebook to ensure ads comply with FEC rules, according to McCurry. That means there’s no legal pressure for Facebook to search out ads that appear to be in violation of FEC rules and remove them or report or suspend users purchasing them.
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