What Is Defamation, and Why Does the Malice Standard Make It So Tricky?

BY OMAR OCHOA

It was recently announced that Fox News and its parent company had settled with election tech company Dominion Voting Systems for a total of $787.5 million — half of Dominion’s $1.6 billion suit — for false claims made by the network accusing Dominion of committing election fraud in the 2020 election. Dominion and many in the public have hailed this as a massive step forward for holding entities like Fox News accountable for their actions and words.

Now, the network may face a similar lawsuit from Smartmatic — another company that received similar statements on air.

Defining defamation

In light of these cases, many Americans are wondering what defamation means and what its greater ramifications on the legal space are. Legally speaking, defamation is a broad term that refers to any false information that harms the reputation of a person, business or organization. In these lawsuits, Dominion and Smartmatic have accused Fox of spreading false information to harm their companies’ reputations, hence defamation.

Underneath the umbrella of defamation are two terms frequently misunderstood and confused: libel and slander.

Libel is a form of defamation that refers to statements that are published or broadcast, whereas slander is defamatory statements that are not published more along the lines of being said in conversation. Since these cases are regarding statements broadcast on national television, they are considered libel suits.

Proving defamation

The way the legal system is set up for lawsuits about defamation, the burden of proof lies with the plaintiff. As such, the party accusing another of defamation must show that the statements meet certain criteria for it to be considered defamatory:

• For libel cases, the first thing a plaintiff must prove is that the statements were published or broadcast. Generally, this is one of the easiest things to prove in a lawsuit, because the plaintiff can just submit the link to where it was published online, a physical copy if it was published in print, or video or audio files if it was broadcast.

• Second, the statement must identify the plaintiff directly. A vague description of the plaintiff is not enough to constitute defamation. A statement must identify the plaintiff by name to be considered defamatory. This is another thing that is easy to prove: it either does or does not mention the plaintiff’s name.

• Where it becomes tricky is proving harm to a plaintiff’s reputation. Sometimes, it’s obvious what constitutes defamation because the words are so clearly harmful on their face. Other times, it is important to consider the statement within context to determine whether the plaintiff’s reputation has been harmed.

• The lines also become difficult to distinguish with regard to proving that the defamatory statement is a “false statement of fact.” Statements that can be proven true or are false statements of opinion are not considered defamatory. Sometimes, it can be difficult to distinguish between what is an opinion and what is being stated as fact.

• However, perhaps the most difficult thing to prove in a defamation case is the level of fault. Ultimately, there are two different standards of fault, based on the profile of the plaintiff. A public official or a public figure will have to go much further and prove actual malice, whereas a private individual or company typically must only prove negligence.

The difficulties of defamation lawsuits

This malice standard is a large part of what makes the legal system so complicated in defamation cases. When a public figure accuses someone of defamation, they essentially have to prove that the accused either knew the statement was false when they made it, or that they acted with a high degree of reckless disregard for what they said. It’s much easier to prove simple negligence in defamation cases for plaintiffs who are not public figures.

However, where it becomes even trickier is that — in cases like the Dominion and Smartmatic cases against Fox — the lines between who and what is considered a public figure become blurred. Because of their integral role in public affairs, these companies that manufacture voting machines can, in some circumstances, be considered public figures. As such, in these cases, it is up to them to prove malice on the part of the accused.

Given the statements were made on air, identify Dominion directly, harm their reputation, were made as a statement of fact, and seemed to have been made with malicious intent, it’s no wonder Fox News decided to settle with the company — these statements have all the hallmarks of defamation. This should be seen as a massive win in the battle against misinformation, as wrongdoers are being held responsible for the damage spreading lies can cause.