One of the biggest media stories of the decade is all but missing from the pages of Australia’s one national newspaper, The Australian. Since the end of January, from when the story built, its one mention in The Australian was on March 12.
It was a wire service story from Agence France-Presse not their own Washington correspondent. It was headlined: Fox News grapples with revelations in defamation case, but the court knows the case as ‘ U.S. Dominion, Inc. v Fox News Network’.
By comparison, the Nine newspapers have run at least seven stories over the same period.
The outcome of this case, before the courts in Delaware, will have consequences not only for the Dominion Inc. and the Fox News Network, but on the media, audiences and readers in both the US and Australia.
The ‘Stolen’ Election
The origins of the case are Fox News’ coverage of claims that the November 2022 presidential election was ‘stolen’ from Donald Trump, the Republican candidate and former President. One of the myriad mechanisms for the theft, promoted especially by former New York mayor Rudi Guliani and lawyer Sidney Powell, was that electronic voting machines had diverted Trump votes to the Democratic candidate, Joe Biden.
The voting machine company, Dominion, is suing Fox News for $US1.6 billion (A$2.3 billion) in defamation for Fox’s role in publicising the claim. A rival voting machine company, Smartmatic, is in the wings with a suit against Fox Corporation, Fox News Network, three of its anchors, as well as Rudy Giuliani and Sidney Powell, on similar issues and claiming US$2.7 billion.
The Dominion case faces a high bar because US defamation law recognises that public figures, including businesses, choose to be in the public eye and may attract unjust, even false criticism. Simply put, defamation of public figures is not just a matter of speaking falsely and knowing it to be false, but of doing so with malice.
As early as June 2022, a judge denied Fox Corp’s motion to dismiss the case. He found Dominion had properly alleged that Rupert and Lachlan Murdoch may have acted with “actual malice” in directing the network to broadcast the vote diversion claims.
A string of revelations over the past two months have strengthened Dominion’s chance of making the malice threshold. Both the prosecution and defence lawyers have been leaking information, found during discovery, including evidence given under oath by the chairman of Fox News’ parent company News Corp, Rupert Murdoch, that he, Fox News executives and on-air anchors believed few, if any, of the claims of vote theft.
Nevertheless, they continued to repeat the claims on air, or at least, did not submit the claims to critical examination, and the reason was fear of losing ratings. The Fox News coverage of the issues and that of other right wing media are held to be partly responsible for feeding the fervour behind the January 6 attack on the US Capitol.
Fox News defence says the claims were newsworthy and the network is protected by the First Amendment, and cited a New York law against using litigation to chill free speech.
Both parties have sought summary judgement, but the case seems set to go before a jury in mid-April. Watch for the headlines.
Fairness and the Media
In a crucial way, this is a crossroads case for a rapidly splintering nation, as media outlets have become increasingly identified with political or religious sectarian views and their audiences hear only one point of view. This partisanship goes back the revocation of the Fairness Doctrine, a doctrine introduced in 1949, by the United States Federal Communications Commission (FCC).
It was a policy that required the holders of broadcast licenses to present controversial issues of public importance and to do so in a manner that fairly reflected differing viewpoints. Our ABC is subject to similar expectations, as expressed in its charter, but not so with private media companies.
In August 1987, the FCC abolished the doctrine, Chairman Patrick, saying: ‘We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country’s inception’. Though Dominion v Fox News is an action for defamation, it is certain to revive calls to reinstate the Fairness Doctrine in some form, and perhaps extend it to social media. The latter will be a big ask.
Far, Far Away
Far, far from Delaware, the eyes of two teams of lawyers are watching Dominion v Fox News closely.
Lachlan Murdoch, heir-apparent to the News Corp dynasty, is suing the Australian online publication, Crikey, over an article claiming ‘Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator’. The article was first published on June 29 but removed from Crikey’s website on June 30 after Murdoch’s solicitor wrote to Crikey. It was republished on August 15, and an open letter in the New York Times provoked one or other of the News Corp Murdochs to sue. Lachlan obliged.
In December Murdoch sought and received court approval to add Eric Beecher and Will Hayward, chairman and chief executive of Crikey’s Australian publisher, Private Media, as respondents to the lawsuit. This pushed the March hearing date back to October.
In the US case, depositions taken under oath from both Rupert and Lachlan Murdoch, reveal the internal editorial workings of Fox News and, by extension, the editorial workings of News Corp., especially, the influence of the Murdochs on daily decision making. These findings could strengthen the ‘co-conspirator’ claim and the public interest defence. Lachlan Murdoch has yet to demonstrate the article ‘caused, or is likely to cause, serious harm” to his reputation’ and that he is the Murdoch referred to, not his father. Most journalists and many readers would think of Rupert, reading the word ‘Murdoch’.
At a time when there are calls for a Royal Commission into the influence of the Murdochs and the Australian arm of News Corp. on Australian media and politics, both cases will shape our media future and audiences’ trust in our media.
TikTok
The clock is ticking on TikTok. The Australian government is expected to ban its use on all Commonwealth-owned devices in early April. More next issue.
Vincent O’Donnell
Media Analyst & Researcher.