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Dominion v. Fox
- raffleslawsoc
- Aug 11, 2023
- 5 min read
Updated: May 13, 2024
By Lin Qianyu, Anny Shan, Fiora Quek, Desmund Loo
Overview
In 2021, Fox News paid out the biggest settlement in history, over $700 million to Dominion voting machine for repeatedly making false claims that the voting system provided for the US 2020 presidential election was rigged to favour Joe Biden, echoing Trump’s lies in the means to appeal to his right-wing fan base who can shore up Fox’s ratings.
Timeline
The Incident: In the wake of the 2020 Pres Elections, Fox News host Jeanine Pirro promoted allegations that Dominion and its competitor Smartmatic had conspired to rig the election against Trump. Hosts Dobbs and Bartiromo also promoted these allegations.
December 2020: Smartmatic told Fox to retract the statement and threatened legal actions. They specified that the retraction must
Be “published on multiple occasions”
“Match the attention and audience targeted with the original defamatory publications”
Fox issued a 3 minute-interview with an expert debunking the allegations days later. No hosts personally issued retractions.
February 2021: Smartmatic filed a $2.7B defamation suit against Fox, the hosts, and Trump campaign attorney Powell, and personal attorney Giuliani.
March 2021: Dominion filed a $1.6B defamation lawsuit against Fox, alleging that Fox spread conspiracy theories about them and allowed guests to make false statements about the company.
May 2021: Fox filed a motion to dismiss the lawsuit, citing the First Amendment (Freedom of speech and press).
December 2021: Judge Eric M. Davis of the Delaware Superior Court denied the motion.
Rules that Fox chairman Murdoch and CEO Murdoch may have acted with malice since there was a reasonable inference that they knew Dominion did not manipulate the elections
June 2022: Davis denied the motion again.
Lawsuit:
Dominion sued Fox News for harming its credibility and reputation with false reporting.
The legal standard was whether Dominion could prove Fox acted with “actual malice” — that is, the legal term for whether Fox made false statements while knowing they were false, or with reckless disregard for whether they were false.
Dominion argued that the internal messages showed many at Fox knew better about the Dominion claims, and thus its actions met that standard.
Fox, however, argued that its hosts were merely covering newsworthy claims and that certain hosts harboured sincere concerns. However, the judge ruled that it was “CRYSTAL clear” that the claims Fox aired were false.
Legal concepts:
Defamation: (in the US)
False information that injures a third party’s reputation, includes libel (written) and slander (spoken). Details vary from state to state.
The burden of proof for the plaintiff, whereby the plaintiff must meet all criteria:
False statement purporting to be fact;
Publication of communication of statement to a third person;
Fault amounting to at least negligence (omission of a duty to act);
Damages to reputation.
The First Amendment:
The First Amendment is part of the US Constitution. It provides (among others) freedom of speech and the press.
Legal parallels in Singapore: Singapore’s Defamation Act 1957
Criminal Defamation
Section 499 of the Penal Code defines defamation as follows:
“… words either spoken or intended to be read, or by signs, or by visible representations, … intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person….” (emphasis mine)
In simple terms, that means that it will be defamation if:
The defamer intends to harm another’s reputation;
The harmed person is identified (the defamatory statement is referring to you);
The information must be “published,” i.e., the defamer wants other people to hear or see the statements.
If there is enough evidence of a defamation offence, the police can take the initiative and apprehend the perpetrator.
The Defamation Act provides for certain exceptions or defences, including:
It is not defamation if the statement is true, and it is for the public good to publish the information.
Good faith opinions based on true facts regarding the public conduct of public servants, or the conduct of any person touching any public questions.
Publishing reports of court or parliamentary proceedings.
Good faith opinions regarding the merits of a case decided by a court, or witness conduct.
Good faith opinions on the merits of public performance, such as publishing a book, making a speech in public, or performing on stage.
Good faith “shall be presumed unless the contrary appears”.
Civil Defamation
Defamation under Penal Code, Section 499
A civil action is available if the written or spoken statements harm someone’s reputation, regardless of whether the person's original intent was to defame. It can also be brought against a person whether their remarks were explicit or indirect, or whether they just repeated what someone else said.
Although the definition of defamation raised for criminal defamation is similar to that of civil defamation, defences vary for civil and criminal defamation.
In addition to specific exceptions and defences outlined in the Penal Code, there are several generally accepted defences against defamation claims:
Justification:
The statement is justified because it is true.
The "defender" must prove that the statement and the underlying facts are substantially true.
Fair Comment:
The statement is an expression of opinion, not a statement of fact.
It is based on true facts.
It relates to a matter of public interest.
It is a fair and unbiased opinion.
Not available if motivated by malice.
Privilege:
There are two types of privilege defences: Absolute privilege and qualified privilege.
Qualified privilege can be defeated if malicious intent is proven.
Absolute privilege applies to judicial, executive, or parliamentary proceedings.
Qualified privilege applies in specific circumstances, such as when one party has a duty or interest in communicating information to a third party with a corresponding interest or duty to receive it.
Alternatively, if a statement was made innocently and not meant to harm, Section 7 of the Defamation Act provides that the person who made the defamatory remark can make an “offer of amends” to avoid a defamation lawsuit:
To succeed with an offer of amends, the defendant must prove innocence and reasonable care before publishing the statement.
The defendant must inform recipients of the statement that it is defamatory and issue a public apology.
An offer of amends can prevent the initiation of a defamation action or halt an ongoing one.
Similar lawsuits
In Singapore, Mr Jerry Tang Mun Wah who had previously published a defamatory post targeting the workshop, On Site Car Accessories.SG, had to pay more than $51K for the damages caused towards the firm in 2021.
The outburst of the incident stemmed from Mr Tang’s displeasure by the fact that despite the premise of a “promise of warranty” after installing a new battery. When Mr Tang found several issues with the audio system and the roof lights of the car and called for the workshop to resolve the issue, the appellant sought to charge him for the on-site attendance.
Upon being contacted, the appellant offered to only charge if the issues detected in the respondent’s vehicle were not attributed to the car battery installed by the appellant. As such, the respondent was thus unjustified in imputing that the appellant would definitely charge the respondent for checking the car battery as well as to further defame the appellant.
As reported in The Straits Times, the breakdown of cost that Mr Tang had to pay was $20,000 in damages and another $24,000 in legal costs, and more than $7,000 in disbursements, which are out-of-pocket expenses.
As such, Justice Kwek has also concluded that "In the eyes of an ordinary and reasonable reader, such an allegation would lower the reputation and standing of the appellant's business”, and this coincides Section 499 of the Penal Code.
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