Following the highest ever-known settlement for defamation in US history, what has been learnt from Dominion’s case against Fox and whether such payouts are likely in Australia?
Dominion had sued the media giant over its coverage of the US presidential election in late 2020, in which various hosts of Fox News shows promoted falsehoods and conspiracy theories about voting machines helping steal the election away from now-former president Donald Trump.
The fact that a settlement of this scale was reached implies just how far Fox knowingly strayed beyond the truth, with significant commercial consequences for Dominion supporting a massive claim for damages.
Defamation Law in Australia
In Australia, however, Dominion wouldn’t have even been able to pursue defamation action as s9 of the Defamation Act precludes a for-profit company or a company with over 10 employees from suing in defamation.
In Australia proceedings can instead be brought for injurious falsehood, where plaintiffs need to establish falsity, malice and actual harm. So in this case, in an Australian-context, Dominion would have needed to prove the material was false, Fox knew it was false, and Dominion suffered financial loss.
Another key difference is that claims for injurious falsehood in Australia have a limitation period of six years, rather than one year for defamation actions.
But the main difference between defamation laws in Australia and the United States is that, in the US, the plaintiff has to prove that the defamatory material was false and that it was published with actual malice or a reckless disregard for the truth. In contrast, in Australia it is the defendant who has to prove that what they wrote was true and that that they acted reasonably.
The reason Fox would have settled is presumably because:
- they knew that Dominion was likely going to satisfy the high bar in US defamation cases by demonstrating that Fox had made false claims with malice and/or a reckless disregard for the truth;
- the publicity around a losing trial would significantly damage the Fox brand;
- the high-profile people associated with the Fox News brand who would have had to give evidence;
- that a court would likely have ordered an even higher amount in damages; and
- that Fox would also incur significant legal fees.
Lessons for publishers
The amount of money to be paid to Dominion was presumably just too good for the voting systems company to turn down. What’s more, to the ordinary consumer of news media the payout looks like a crushing defeat for Fox.
And perhaps most significantly of all, the size of the payout could potentially lead ordinary persons to question whether any reputation Fox had for honest and responsible journalism has been irretrievably lost.
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