For the last two years, two vote-counting technology companies have been seeking redress for defamation by Rupert Murdoch’s Fox News and a few copycat Right-wing media outlets.

Dominion Voting Systems has sued Fox and its parent company, Fox Corporation, for at least US$1.6 billion (AU$2.33 billion) for falsely claiming its machines changed votes cast for Trump into votes for Joe Biden. The trial is scheduled for April.

 Smartmatic has also sued Fox, its parent and others for $2.7 billion (AU$3.94 billion).

 

Fox recently lodged an appeal to the New York's Supreme Court Appellate Division to have Smartmatic’s action dismissed on the grounds that reporting denials of election integrity was legitimate news coverage; protected by free speech; and there was no “actual malice” — which is a necessary element for defamation to succeed in the USA.

 

Last Tuesday, the five appellate judges unanimously rejected Fox’s claims. Smartmatic’s action – against Fox News, hosts Maria Bartiromo and Jeanine Pirro, former host Lou Dobbs and Donald Trump’s former attorney, Rudy Giuliani – will now proceed to the next phases before eventually being assessed by a judge and jury in open court.

 

Malicious intent by Fox News executives

 

Fox’s argument that their baseless lies are protected by constitutional free speech provisions fails if complainants can show “actual malice”, which means either they knew their election tampering claims were false or they knowingly ignored facts that would have shown them to be false.

‘...the complaint alleges in detailed fashion that in their coverage and commentary, Fox News, Dobbs, and Bartiromo effectively endorsed and participated in the statements with reckless disregard for whether the assertions... had any basis in truth or were supported by any reliable evidence.’

This follows a similar ruling in the Dominion matter by Judge Eric Davis in the Superior Court of Delaware last June that Fox News executives decided to publicise Donald Trump’s claims that the 2020 Election was stolen from him, even though they knew this was completely untrue.

This followed Fox’s daytime and primetime audience plummeting by 34 per cent and 37 per cent respectively when they first reported – accurately – that Joe Biden had won the Election.