I think, perhaps, this might be in the spirit of what Turing had in mind: When making a claim to another person, does this constitute a verbal contract that your claim is truthful, thereby making lies a form of fraud?
So this has nothing at all to do with the Fox v. Akre case (which is simply about whether a news organization has a right to fire an employee). But no, “making a claim” alone cannot give rise to fraud. The most important missing factor is the “would not otherwise” factor. The essence of fraud is knowingly making a false representation about a thing in order to induce another party to give something of tangible value in exchange for the thing, which they would not have otherwise done had they known the true nature of the thing.
As applied to broadcast news, the concept of “fraud” is almost totally inapplicable, at least with respect to the relationship of the organization and viewers. There is no direct exchange between the organization and the viewer, nor is there a sufficiently explicit commitment by the organization to provide a specific thing that a viewer could sensible allege that “they would not have otherwise”. (Moreover, the supposedly damaged party would be the viewer who views unsatisfactory content). For example, I cannot sue the network for broadcasting the show “Different Strokes” because I judge it to be stupid and I allege that the network implicitly promised to show only non-stupid shows.
For instance, if you publish consumer reports, and claim that a given product is defective when it’s not–or vice versa–one might argue that this violates a contract.
Perhaps, if you ramp this up a bit. Let’s say that “Consumer Tattler” wishes to increase its paid circulation, and does so with a series of exposés alleging that their laboratory tests prove that Cuisinart food processors explode with fatal consequences (and of course the supposed lab results are simply false). The implication that the publication provides valuable information which they will provide in exchange for money is there, the product is not what it claims to be (it is not “information”, it is falsehoods), it is reasonable to conclude that customers would not have paid for the magazine if they had known that the content was false (it is not represented as literary fiction). Thus the concept “fraud” would apply.
We might argue that pragmatics should not be taken into consideration when forming contracts,
We might, but it would be plainly stupid to do so. What you might do, more successfully, is show that the claimed conclusion is not entailed, and it is not “probable” that it is implied (thus, no reasonable man would reach the conclusion that the statement implies X).
So if I’m convincing in this argument, then by identifying a publication as a “consumer report” implies that the publication tells facts about the performance of a product on the market. In that case, to do otherwise deliberately seems like a breech of contract.
No, the act of labeling something as a “consumer report” is not at all relevant to the determination of fraud.
I don’t know the details of the content of the Akre story (since it was not aired), but for the sake of argument, let us assume that the story contained false assertions. Let us assume that the false assertions include an interview with a distraught mother who says “Monsanto poisoned by son” (in fact Monsanto did not poison her son), and an interview with a university professor who says says “Monsanto is poisoning consumers” (it is not). Akre then assembles these lies into a show: however, she herself is not making the false representations, she is acting as a conduit for the false statements. She is not directly reporting “the facts” about Monsanto, she is reporting the facts about other people’s statements about Monsanto. Assuming that Akre did not pay the interviewees to make false statements, Akre therefore was truthful (though clearly biased) with respect to what she literally presents. Here is where you get into the pragmatic problem, that people may have some tendency to think “Well, the news is ‘responsible’, surely they would investigate the matter to be absolutely certain that the statements are indeed true”. But I don’t think that’s a valid assumption, at least in the context of modern news reportage. (If you have any doubts, watch the NBC nightly 'It’s not news but its what we’re feeding you" performance, coming from Venice, LA).
Had Fox aired that show, they would have had a degree of moral responsibility for Akre’s false representations, but for the reason that Akre herself would not have been guilty of fraud, Fox also would not have been. Moreover, broadcast news is just “put out there”, and you don’t pay Fox to watch their news. An advertiser might have a slightly better standing in a fraud matter, since advertisers do actually pay the network and if they had known that the show was false, an advertiser might successfully show “Had we known that they were going to air this false report, we would not have purchased advertising time at that time with that network”. That assumes that they can demonstrate that the materiality requirement is satisfied, i.e. that their decision to advertise is based not on the viewer share of the show (which is actually what matters), but rather on a content relationship. (For example: if the advertiser were Monsanto, and if Fox had knowingly suppressed the information that the news that night would contain false reports about Monsanto – a reasonable man could easily conclude that Monsanto would not want to pay to be defamed).
But of course, Fox did not air that show and in fact wanted Akre to air the other side of the story, which she refused to do, and they exercised their option to fire her about a year later. Akre’s claim was that she had a privileged “whistle-blower” status that made her immune to being fired.
