The courtroom showdown in the $1.6 billion defamation lawsuit by Dominion Voting Systems against Fox Corp (FOXA.O) and Fox News got underway on Tuesday as jury selection resumed ahead of opening statements in a trial putting one of the world’s leading media properties in the crosshairs.
Anticipation has been building for this day since Denver-based Dominion sued in 2021 over Fox’s airing of false claims that the Denver-based company’s ballot-counting machines were used to rig the 2020 US presidential election in favour of Democrat Joe Biden over Republican then-President Donald Trump.
In addition to the legal risks for Fox, another US voting technology company, Smartmatic, is pursuing its own defamation lawsuit seeking $2.7 billion in damages in a New York state court.
Smartmatic is also at the centre of presidential poll dispute that pits President William Ruto – declared winner of the August 9, 2022 poll – and opposition leader Raila Odinga. Nearly seven months after the Supreme of Kenya upheld the East African nation’s presidential election tallies, Odinga contends that Smartmatic technology was not fool-proof and was breached Venezuelan tech experts to deny him victory.
Odinga insists the Smartmatic server should opened for verification of the 2022 election data.
In the US, after a one-day delay ordered by Delaware Superior Court Judge Eric Davis, selection of the jury resumed in Wilmington. That process is expected to go quickly, setting the stage for lawyers representing the two sides to make opening statements to the 12-member panel.
Journalists and potential jurors lined up outside the courtroom early in the morning ahead of the day’s proceedings.
Adding to the drama is the fact that 92-year-old media mogul Rupert Murdoch, who serves as Fox Corp chairman, is due to testify during the trial, along with a procession of Fox executives such as CEO Suzanne Scott and on-air hosts including Tucker Carlson, Sean Hannity and Jeanine Pirro.
The judge did not disclose the reason for the 24-hour delay, but two sources told Reuters that Fox and Dominion had been holding last-minute settlement talks. Fox and Dominion could still settle the case. Fox faces a potentially enormous judgment because Dominion is also asking for punitive damages in any amount jurors deem appropriate.
Dominion in 2021 sued Fox Corp and Fox News, contending that its business was ruined by the false vote-rigging claims that were aired by the influential American cable news outlet known for its roster of conservative commentators.
The primary question for jurors will be whether Fox knowingly spread false information or recklessly disregarded the truth, the standard of “actual malice” that Dominion must show to prevail in a defamation case.
Based on a slew of internal communications, Dominion alleges that Fox staff, ranging from newsroom employees all the way up to Murdoch, knew the statements were false but continued to air them out of fear of losing viewers to media competitors on the right.
The trial is considered a test of whether Fox’s coverage crossed the line between ethical journalism and the pursuit of ratings, as Dominion alleges and Fox denies. Fox has portrayed itself in the pretrial skirmishing as a defender of press freedom.
Fox Corp shareholders are demanding company records that may show whether directors and executives properly oversaw the Fox News coverage of Trump’s election-rigging claims, sources said, in what could be a prelude to lawsuits seeking to make directors liable for costs.
Fox has called Dominion’s $1.6 billion damages claim unrealistic and based on flawed economic modelling. An expert report commissioned by Dominion attributed scores of lost contracts to Fox’s coverage, though much of the report remains under seal.
Fox claimed in a filing on Sunday that Dominion had agreed to knock off more than $500 million of its damages claim. A Dominion spokesperson disputed that claim and said its damages claim remained unchanged.
Dominion has said defamatory statements about it aired on Fox shows including “Sunday Morning Futures,” “Lou Dobbs Tonight” and “Justice with Judge Jeanine.”
Dominion also has cited evidence that some hosts and producers thought the guests who were spreading the false statements, including former Trump attorneys Rudy Giuliani and Sidney Powell, could not back up their allegations.
Fox had argued that coverage of the vote-rigging claims was inherently newsworthy and protected by the US Constitution’s First Amendment guarantee of press freedom. Davis rejected that argument in a ruling last month.
- A Reuters report