A recent decision out of the Delaware Superior Court explores the line between breaking news and defamation. Dominion Voting Systems was the subject of conservative ire centered around the 2020 election after its voting machines confirmed Joe Biden's victory. Following the election, Dominion hit back by filing a series of defamation suits, one aimed at the right-leaning network, Fox News. The suit against Fox alleged that claims by Fox hosts Maria Bartiromo, Lou Dobbs, Sean Hannity, their guests (like Sidney Powell, Rudy Giuliani and Mike Lindell, who have had their own brushes with defamation law lately) and others at the network that Dominion rigged the election--including claiming that Dominion flipped votes and that its machines had initially been created to rig elections for Hugo Chavez--were defamatory. Crucially, Fox continued to push these stories after receipt of an email from Dominion providing information from independent sources debunking Fox's claims, and after a number of other sources had similarly unraveled Fox's narrative.

Fox news moved to dismiss the Complaint, claiming that "truthfully reporting newsworthy allegations made by a sitting president and his legal team on matters of public concern is not actionable," and that their reporting was protected by a neutral report privilege or were statements of opinion. The court, applying New York substantive law but Delaware procedural law, denied the motion and refused to dismiss Dominion's $1.6 billion claim.

The court first dealt with Fox's neutral report defense, which is a limited defense available to media defendants who republish a third-party's allegations in an accurate and disinterested manner. As the name implies, however, a "neutral report" must be neutral, and the court found that Fox's reporting on this topic was not (it also noted that it is at least unclear whether New York still recognizes this defense). In particular, the court was guided by the fact that Fox hosts continued to attack Dominion despite receipt of Dominion's email presenting contrary facts, and failed to report contrary evidence, including evidence provided by the Department of Justice refuting its reporting. As the court wrote: "Fox therefore may have failed to report the issue truthfully or dispassionately by skewing questioning and approving responses in a way that fit or promoted a narrative in which Dominion committed election fraud."

Next, the court addressed Fox's fair report defense, which is codified at Section 74 of New York's Civil Rights Law and provides a defense for truthful reporting of a judicial proceeding. Much of Fox's coverage had included guests like Sidney Powell, who was then representing the former president. As the court noted, however, this defense requires that the reporting be "substantially accurate" and about a pending or ongoing proceeding. The court found that the majority of Fox's statements were published before any proceeding was initiated by Powell, were not clearly limited to the election fraud lawsuits pending around the country, and, in any case, were not substantially accurate.

Finally, the court found that the reports were not matters of opinion, which are not subject to claims of defamation because only statements of fact (rather than opinion) can be proven false. Consistent with New York's test, the court looked at whether a reasonable viewer would understand Fox's reporting to be statement of opinion--rather than fact--and found that he or she would not, particularly given that Fox had framed the issue as seeking the "truth" about the election. At a minimum, the court found that the statements were "mixed opinions," which are actionable under defamation law where, as here, the purported facts underlying the opinion are inaccurate or incomplete.

The court also found that Dominion had properly alleged actual malice, all of which will allow Dominion's hefty damage claims to move forward to discovery. We'll see what turns up.

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