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Say candidate A and candidate B both want to be elected president.

Then candidate A pays a journalist to publish an invented story about candidate B. For example where candidate B killed a cat.

Then the candidate B loses a lot of votes and because of that, A becomes the president. For example because people hate cat molesters.

Is that illegal? In the USA and elsewhere.

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    Why would the politician pay? In the USA, there are plenty of news outlets that will do this kind of reporting for no charge. – David Hammen Sep 15 at 17:43
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    This would be better over on Law.SE. – Paul Johnson Sep 15 at 20:24
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    isn't this literally how a (Super-) PAC works? – Stian Yttervik Sep 16 at 6:51
  • @StianYttervik: I think generally PACs (super or non) gather/generate money for campaign expenditures. Generally, this includes buying ads, but not buying journalists. – sharur Sep 16 at 15:07
  • In this example, is candidate A concocting the claim themselves? Alternatively, are they specifically hiring a "journalist" to write and publish false information, or just unflattering information (whether or not the "journalist" makes the story up)? – Upper_Case Sep 16 at 18:22
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Since you ask about the situation around the world, as an example of such a law (kind of) the UK has the Representation of the People Act 1983 which among other clauses has:

106 (1) A person who, or any director of any body or association corporate which—

(a) before or during an election,

(b) for the purpose of affecting the return of any candidate at the election,

makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true.

(2) A candidate shall not be liable nor shall his election be avoided for any illegal practice under subsection (1) above committed by his agent other than his election agent unless—

(a) it can be shown that the candidate or his election agent has authorised or consented to the committing of the illegal practice by the other agent or has paid for the circulation of the false statement constituting the illegal practice; or

(b) an election court find and report that the election of the candidate was procured or materially assisted in consequence of the making or publishing of such false statements.

So at least in theory both the candidate and the journalist have broken the law and could be prosecuted, with the candidate's potential win liable to be voided if the Election court so decided. While actual enforcement is rare compared to the amount of dirt which gets thrown (most of which is considered opinion, rather than fact), this has happened (over an election pamphlet, not a news story in regular media), so the law isn't totally academic.

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  • Don´t forget to do Canada and South Australia. – JdeBP Sep 16 at 17:16
  • @JdeBP I'll leave that to someone who knows the case law. I'm happy to make this a community answer if it's better to have one "It is in ..." answer. – origimbo Sep 16 at 18:59
  • Just a slight caveat: this is not a strict liability offence, meaning the prosecution has to prove beyond reasonable doubt the mens rea i.e. that the maker/publisher had intention ("for the purpose of affecting the return of any candidate at the election"). The act alone of the false statement being published is not sufficient. – JBentley Sep 16 at 20:00
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The journalist has (probably) committed libel, which is (mostly) not a crime in the US but can result in civil liability (i.e. B could sue the journalist). Since A and the journalist conspired to produce this fake news, they would likely share in this liability (assuming B can prove they acted in concert).

To establish a case of libel or defamation in the US, B will generally need to prove all of the following factors:

  • The journalist caused something to be published.
  • The material included a provable statement of fact.
  • The statement was materially false. "Material" means that you can't sue someone for getting a minor detail wrong if the "gist or sting" of the overall publication is substantially true.
  • The falsehood caused some form of cognizable damage to the plaintiff's reputation (i.e. it must be more specific and measurable than "he made me look bad" or similar arguments). Certain statements, such as allegations of criminal acts, are assumed to cause such damage ("defamation per se").
  • The journalist acted with actual malice, meaning the journalist either knew the material was false, or made no serious effort to fact check it.

Actual malice is usually the sticking point in cases like this. If A and the journalist were sufficiently careful, there may be no evidence of it. Even if evidence does exist, it may be extremely difficult to establish to the satisfaction of a court.

(As I alluded to above, criminal libel is technically still a thing in some states. But it generally requires the state to establish at least all of the elements described above. In practice, prosecutions are extremely unusual.)

Regardless, it is highly unlikely that this would result in overturning an election which has already taken place, whether for the President of the United States, or for any other elected office whether state or federal.

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    Wouldn't the conspiracy angle, if proven, also prove actual malice? – o.m. Sep 15 at 16:07
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    @o.m.: No, because it's possible they were conspiring to publish something true (or at least, something one or both of them believed to be true) but unflattering. – Kevin Sep 15 at 16:09
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    @JoeJobs: In general, it's not illegal if you believe it's true, but either you or the journalist are expected to do a minimal amount of fact checking. You can't just make something up that sounds plausible, assume it to be true and thereby "believe that it's true." – Kevin Sep 15 at 16:21
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    As always, there is the rule that laws exist not in vacuum but rather in the context of a society. And so, for example, for a journalist, the standard for "actual malice" would be measured against what can be reasonably expected from a journalist. And oftentimes, when it comes to measuring "what can be reasonably expected", judges will turn to industry organizations. In a case like this, for example, a judge might check whether the journalist achieved the standard of truthfulness that is required by the Code of Ethics for an organization like the Society of Professional Journalists. – Jörg W Mittag Sep 15 at 17:27
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    @JörgWMittag: Can you cite caselaw of that? Most libel cases do involve journalists so I would expect it to be pretty well-developed at this point. – Kevin Sep 15 at 17:30

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