Disinformation on Trial: Fighting Foreign Disinformation by Empowering the Victims

Foreign disinformation catapulted into the national spotlight with the 2016 presidential election, but its impact is not confined to the electoral map or season. This Article addresses the threat of foreign disinformation by proposing a new statute: a private right of action, enabling harmed persons to directly sue state or private actors, foreign or domestic, who knowingly or recklessly spread disinformation from abroad. Scholars and policymakers have proposed other, far-flung solutions ranging from greater online security to outright censorship. Each of those ideas stumbles on common challenges and lacks a valuable ingredient: an interested party, directly harmed by the foreign campaign, who benefits from a solution and thus has a motivation to act.

This proposal adds to the arsenal and grants benefits found nowhere else: public notice of foreign interference; a tool to restrain domestic accomplices who spread disinformation; and a moral, if not always financial, payoff for victims.