Red slime defamation
Ray Snoddy looks at the US libel fallout from the Trump administration's accusations of rigged electoral machines and what it could mean for the future of fake news
The British media have always been wary of libel – because of our sometimes oppressive libel laws, judges with an uncertain grasp of freedom of expression, and juries with a propensity to punish newspapers.
There have been well-documented cases of libel tourism where the aggrieved come to London, even though perhaps only a handful of copies of an overseas newspaper or magazine circulated here, because we are thought a soft touch for plaintiffs.
The rich and famous and large corporations have used defamation suits to suppress legitimate information.
We must never forget how close Jonathan Aitken and his “simple sword of truth” and “trusty shield of British fair play” came to success against The Guardian.
The libel laws of England and Wales have also had a chilling effect, preventing stories being published in the first place, or led to early apologies and settlements because of the cost and risk of defending stories in court is too high.
This week, former Daily Telegraph editor Sir Max Hastings wrote how he had referred on BBC Radio 4 to Ian Paisley’s evil role in the 1969 onset of the Northern Ireland Troubles.
Despite the obvious truth of his remark, Sir Max told how he was virtually dragooned by the BBC into signing an apology as the Corporation handed over £50,000 in damages.
In America - how different things are in America - there is a first amendment guaranteeing freedom of expression. To win a defamation case there, a plaintiff has to prove that the defendant made a false statement of fact that caused actual harm.
If the plaintiff is a public figure the bar gets even higher and they have to show that the defendant acted with “active malice.”
In effect, this means that the speaker knew or should have known that what they said wasn’t true, something that can be difficult to prove.
Strange then that we should now be looking to the US defamation laws to strike the first serious blows that could halt lies, fake news and conspiracy theories when regulation, self regulation and other forms of legislation, have been following far behind in their wake.
It is difficult to underestimate the importance of the law suits launched by two manufacturers of election voting machines, Dominion Voting Systems and Smartmatic, which have been accused of deliberately rigging the vote in favour of President Biden and “stealing” Trump’s victory.
Together, they are suing Donald Trump’s attorney Rudy Giuliani and his former attorney Sidney Powell and several television programmes on Fox News, Newsmax and One American News Network (OANN) for a total of $ 5.3 billion (£3.84 billion).
Systematic is suing Rupert Murdoch’s Fox Corporation, Fox News and associated presenters for $2.7 billion.
They are all accused of echoing President Trump’s allegations that there was a multi-state conspiracy involving “rigged” machines.
The accusations against Systematic are particularly bizarre because the company, founded by Venezuelan Antonio Mugica, was barely involved in the recent presidential election after pulling his company out of the US in 2007 amid controversy over his nationality.
According to the New York Times, Giuliani declared on Twitter that Dominion was “a front for Smartmatic, who was really doing the computing.”
Smartmatic’s lawyer won the largest defamation case in the US so far - $177 million for a beef producer whose “lean finely textured beef” was described by ABC News as “pink slime.”
The New York Times has dubbed the present case the “Red Slime” lawsuit.
Legal specialists believe Dominion and Smartmatic have credible cases in that real damage was done. In the Dominion case, a number of contracts have been lost and employees have received death threats.
In the complaint, Dominion’s lawyers have written: “The truth matters. Lies have consequences. Fox sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process. If this case does not rise to the level of defamation by a broadcaster, then nothing does.”
If successful it is not clear how much of their financial claims the companies will actually receive, but noticeable amounts could still be involved and new records set by the Red Slime cases.
At the very least, whatever the outcome of the cases, the American right-wing media will be forced to have a care in future about how gratuitously they spread conspiracies and outright falsehoods.
The really interesting question is whether a new lease of life could be given to defamation lawsuits in the US, a result of which could lead to a wider range of cases.
There are plenty of conspiracy theories to tackle.
Should 5G operators be able to sue those spreading the nonsense that 5G masts have caused Covid for example?
Perhaps Bill Gates could use a few of his dollars to seek legal retractions from those spreading the false allegation that he is seeking world domination by using the Covid vaccines to inject microchips.
The biggest question of all is whether defamation laws could be used against the likes of Facebook, Google and Twitter for spreading falsehoods such as the election machine conspiracies?
Before that could happen of course, the huge issue of whether the social media organisations do indeed carry the legal responsibilities of publishers, as opposed to neutral transmitters of information, would have to be finally settled.
Don’t hold your breath on that one. If such a case is ever taken it might have to go all the way to the US Supreme Court.
Far away from billion dollar lawsuits over voting machines in the US, at least we have just taken a very small step forward in the UK in dealing with the impact of the social media giants.
At last, the Competition and Markets Authority has launched its Digital Markets Unit. Its first task is to draw up a code of conduct for the social media giants.
The hope is the DMU can tackle the way that the Californian companies use their dominance to control online advertising markets.
The Unit will be able to investigate Google’s algorithms and will be able to impose “very significant fines” if such companies fail to protect media freedom and legitimate journalistic content.
For now, the one to watch is the progress of $5.3 billion worth of lawsuits through the US legal system and their effect on the future spread of lies, falsehoods and conspiracy theories.