The settlement in which Fox News agreed to pay $787.5 million to Dominion Voting Systems to end Dominion’s defamation lawsuit underscores just how serious matters of defamation, which includes libel and slander, can be. Other recent high-profile defamation cases include: a $2.7 billion case against Fox News filed by Smartmatic, a voting technology company; a suit by journalist Jean Carroll against Donald Trump; and lawsuits against conspiracy theorist Alex Jones for statements he made about the Sandy Hook school shootings that resulted in judgments for the plaintiffs of about $1 billion.
According to the Cornell Law School’s Legal Information Institute, “Defamation is a statement that injures a third party’s reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements).”
“There’s been a trend, particularly on social media, to make statements that are defamatory,” Jeffrey Buss, of the Yonkers-based law firm Smith Buss Jacobs LLP told the Business Journals. “I think people are going to have to be more thoughtful before opening their mouth.”
Buss sees the modern information age in which we live as a factor in providing more opportunity for libel and slander to occur and that every businessperson needs to understand where the line is that separates free speech from defamation.
“When people wrote things by hand or typed them out the old-fashioned way it was a slower process and I believe there was a little bit more thought put into a statement,” Buss said. “With email and then with texting and TikTok and all the new forms of communication the ease and speed with which you can make a statement has increased but people have not thought through clearly sometimes what the import is of their statement.”
Buss said he needs to compliment the lawyers for Dominion who did an extraordinary job of digging out information that included incriminating emails, texts and recordings demonstrating that Fox and its personnel knew that what they were reporting about Dominion being responsible for fraud in the 2020 Presidential Election was not true. They had built a case that observers feel, had it gone to trial, would have proven that Fox was acting with malice in its defamation of Dominion. In defamation suits against media companies, proving that a defamatory statement was made with actual malice can be difficult.
“There’s a lot of money that was obviously spent by both sides preparing this case and that”™s far outside of what a ‘normal’ business would want to spend or be able to spend on this type of lawsuit,” Buss said. “The lawyers did an extraordinary job representing Dominion.”
Buss said that while the law didn’t change because of the Dominion/Fox outcome, the consciousness of the public may have gotten a little bit more sensitive to statements that have no factual basis.
“This case was brought in Delaware but the judge was required to apply both Delaware and New York law. He took the time to patiently go through almost every aspect of New York defamation law in the decision that he issued in March,” Buss said.
Delaware Superior Court Judge Eric M. Davis ruled in March that Dominion proved that statements made by Fox were false and that the case could proceed to trial before a jury. Davis wrote in his ruling that material Dominion presented made it crystal clear that none of the statements made by Fox about Dominion with respect to the 2020 election were true.
“You can’t erase things that are written in email; they’re backed up somewhere,” Buss pointed out. “With forensic examination of electronic data you can find comments that people utter without really thinking through what the ultimate context would be.”
Buss said that when a business is preparing material for publication in print, posting on the internet or otherwise being disseminated it is not always necessary to have it reviewed by an attorney if it has been prepared using good judgment and common sense.
“If you are making comments about your competitors there are a lot of issues that you need to be concerned about. If you’re going to make a statement it should be an opinion rather than a factual statement if you’re going to compare your company with some other company,” Buss said. “Generally you can trumpet your own business without concern. It’s when you start criticizing another company that you have to be thoughtful about how you compare your business with theirs.”
Buss noted that libel and slander insurance coverage is available and some business insurance policies already may include protection.
“Business people need to think about what the costs would be if they get tied up in a defamation case,” Buss said, “It’s always better to be descriptive about your product and telling people why they should use your services and products. You don’t need to denigrate your competition.”
