You may have heard recently that US Dominion Inc., Dominion Voting Systems Inc., and Dominion Voting Systems Corporation (Dominion) settled their defamation case against Fox News Network, LLC (Fox) for an alleged $1.17 billion AUD. The Delaware Superior Court proceeding was prompted by Fox's coverage of the 2020 US presidential election. That coverage included statements about Dominion's voting machines that Dominion alleged were defamatory. As part of the settlement, Fox conceded publicly that certain claims it made about Dominion were false.
The settlement comes after Dominion had also filed similar lawsuits against other media outlets and individuals, including former US President Donald Trump.
Defamation law in Australia
Australia has largely uniform defamation laws across its states and territories, which seek to balance the right to protect individual reputations whilst ensuring freedom of expression is not unreasonably limited.
Amendments to Queensland's Defamation Act 2005 commenced on 1 July 2021 following an Australian Law Reform Commission review.
Under Australian law, defamation can occur when a statement:
- is published (i.e. communicated) to a third party by the person being sued (the defendant);
- identifies or is likely to identify the person about whom the statement was made (the plaintiff);
- is untrue; and
- has caused or is likely to cause serious harm to the plaintiff's reputation.
Importantly, only companies that were not formed for financial gain or have less than 10 employees can sue for defamation in Australia. As such, Dominion cannot sue for defamation in Australia.
Before a plaintiff can begin a defamation proceeding in Australia, they must first send a Concerns Notice to the prospective defendant setting out such things as:
- where the relevant publication can be accessed;
- the defamatory imputations the plaintiff considers have caused or are likely to cause serious harm to their reputation; and
- if the plaintiff is a corporation, any financial loss it considers has been or is likely to be caused by the publication.
Defences
Despite the success of Dominion in negotiating an enormous settlement, the case is somewhat misleading in that winning a defamation case can be difficult.
One reason for this is the number of common law and statutory defences potentially available to defendants. For example, in Queensland, a defendant can plead contextual truth, scientific or academic peer review, honest opinion, innocent dissemination, public interest and/or qualified privilege in defence of a defamation claim.
Lessons
While the settlement between Dominion and Fox highlights the potential consequences of spreading incorrect information and the extent to which defamation law can protect individuals and companies from the harm caused by defamatory statements, the result may give would-be Australian defamation plaintiffs false hope.
Even relatively small companies cannot sue for defamation in Australia and should an entity have a defamation claim at first glance, it is important to consider whether one or more of the several defences apply and if commencing a court proceeding is commercially viable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
