In US lawsuit, global message on press freedom vs disinformation

Although the express recognition of freedom of press in the First Amendment to the US Constitution places the American media in a unique position, the case is expected to have seminal consequence for balancing press freedoms and penalising disinformation across the globe.

Last week, a voting software company, Smartmatic, filed a $2.7 billion defamation lawsuit against American media powerhouse Fox News, known to be right-wing, and pro-Donald Trump attorneys Rudy Giuliani and Sidney Powell for false election claims they had made. Although the express recognition of freedom of press in the First Amendment to the US Constitution places the American media in a unique position, the case is expected to have seminal consequence for balancing press freedoms and penalising disinformation across the globe.


What is the case about?

Smartmatic, which makes voting machines, filed a defamation suit in the Manhattan Supreme Court seeking damages of $2.7 billion against Fox News, its hosts Lou Dobbs, Maria Bartiromo and Jeanine Pirro, and attorneys Giuliani and Powell for what the company termed “knowingly false claims” about former President Trump’s election loss.

In a 258-page lawsuit, the company claimed that the defendants invented a story that the election was stolen from Trump and made disparaging statements against Smartmatic, alleging that its machines and software platforms hacked to allow Democrats to seize the election. In one show, Smartmatic was represented by Fox News as a “Venezuela company under the control of corrupt dictators from socialist countries.”

Although these claims did not change the result of the election, Smartmatic claimed that the news media organisation and its hosts profited in ratings and advertisements from spreading this narrative while the company suffered a loss of reputation, faced a host of cyberattacks and also received hate mails and death threats from those who believed in these claims.

How has Fox News responded?

In a statement, it said, “Fox News Media is committed to providing the full context of every story with in-depth reporting and clear opinion.”

However, after the lawsuit, in an unusual move, Fox Business cancelled Lou Dobbs Tonight, its highest rated show, after its host was also specifically identified as a defendant in the lawsuit. According to a New York Times report, Fox also ran fact-checks against claims made by its own anchors on electoral fraud.

It has also moved the court seeking to dismiss the lawsuit claiming it is an attempt to chill First Amendment Rights under the Constitution.

Why is this case significant?

The lawsuit claiming such huge damages is being seen as a test case for fighting disinformation. Even before the lawsuit has had a hearing, Fox News’ cancellation of the show is seen as a course-correction measure. Advertising boycotts, and mass campaigns against fake news have had little impact over the years. 📣 Express Explained is now on Telegram. Click here to join our channel (@ieexplained) and stay updated with the latest

It is also significant that the lawsuit has been brought about by a private party, which relatively has a higher degree of protection than public figures to protect its rights, and still throws light on the claims of election fraud — an issue of utmost public importance.

How does American law look at lawsuits against the press?

The First Amendment recognises the freedom of the press in a bundle of rights and broad protections. Among various provisions, it guarantees protection against imposition of criminal penalties or civil damages on the publication of truthful information about a matter of public concern, or even on the dissemination of false and damaging information about a public person, with rare exceptions.

With the First Amendment protections, defamation law is rather unsympathetic to the plaintiff, especially public figures and those holding public offices. While there are no federal laws against civil defamation, different states have varying definitions of what constitutes defamation. While the English Common Law jurisprudence moulded defamation law in the US, the landmark 1964 case New York Times Co. v. Sullivan redefined libel law in favour of media. The case set the standard that to win a libel suit in matters involving public concerns, it is not enough to simply prove that a false statement of fact was made against the plaintiff that damaged his reputation. The plaintiff would be required to prove either malice — a deliberate attempt to harm the plaintiff or a “reckless disregard” for facts.

How is this different from Indian law?

Compared to the US law, India’s civil defamation law is less stringent to the plaintiff. The plaintiff would just need to prove that the statement made against him results in lowering his or her reputation or moral character in the eyes of the society or any other person. The law in India does not require proof of intent to defame.

India’s Constitution, unlike in the US, does not distinguish the press in guaranteeing free speech. Article 19(1)(a), which recognises freedom of speech and expression, is for every citizen. The press doesn’t qualify as a separate category for rights, but the collective right to free speech includes every individual journalist.

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