A long time ago, in a galaxy far, far away… How the managers at Fox News must wish this applied to their decision to pander to Donald Trump followers, who decided to switch to even more rightwing media outlets after Fox initially refused to lend credence to the Trump campaign’s claim that the 2020 election had been stolen and that Trump had actually won.
But what Fox went on to do was no innocuous bit of fantasy and, today, it has been forced to pay damages worth $787.5 million to prevent Dominion Voting Systems from going ahead with its prosecution of Fox News for libel.
This settlement by Fox demonstrates how prosecution for steep civil damages can be an effective deterrent against libel, especially as it comes in the wake of the damages worth nearly $1.5 billion ordered by the courts against conspiracy theorist Alex Jones and his channel InfoWars for peddling the theory that the Sandy Hook high-school mass shooting, which snuffed out 20 lives, was a government-sponsored bit of drama, aimed at winning popular support for tougher gun control measures. People who trusted Jones’s conspiracy theories believed his claim that grieving parents and relatives were paid actors, threatened some of them, threw things at their homes while driving past and even fired shots at them, causing several families of the victims to change homes. Then, they sued Alex Jones.
Fox News’ comeuppance is most relevant for Indian television. Fox had been the first major TV outlet to call Arizona, a swing state, for Joe Biden, in spite of being a longtime champion of rightwing causes and Trump policies, and having served as Trump’s original TV platform. Trump railed against this betrayal and called upon his followers to abandon Fox and switch to rightwing platforms such as NewsMax.
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When audience numbers continued to drop, in response to Trump’s tweets against Fox, Fox anchors started calling in on their shows Trump lawyers and campaign managers, who claimed the voting machinery had been rigged to convert votes cast for Trump into votes for Biden. They went along on air with the Trump campaign’s claim of election fraud, in spite of pooh-poohing these charges in private messages and email exchanges, brought to light in the discovery process of the libel case brought against Fox by Dominion. Another voting systems company, Smartmatic, has also sued Fox — for a heftier $2.7 billion in damages. That case is yet to be settled.
The Indian scenario
Indian TV is rife with fake news, innuendos against political leaders, and partisan propaganda. The race for viewership is widely blamed for such scandalous standards of journalistic ethics. Yet rare is the occasion when people who have been wronged by a TV channel have sued the channel and sought damages. This should change.
There are two major differences between India and the United States in the working of the libel law. One, in India, libel can be prosecuted as a civil offence and also as a criminal offence that invites a jail sentence, as Rahul Gandhi recently discovered, while libel is a civil offence in the US. The other difference is the speed of prosecution: in India, cases can go on for decades, while in the US, cases can be prosecuted within reasonable periods of time.
It is not easy in the US to obtain a conviction in a libel case. For a news report to constitute libel, it must have been carried out with actual malice, meaning that either the reporter knew what was being reported was false or, in case the reporter did not know the report was false, did not care about the veracity of the report — that is, showed reckless disregard for the truth. Initially, this high bar had been set only in the case of public officials, but later, it was extended to all individuals through successive rulings of the Supreme Court.
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Fox News’ eagerness to avoid a damaging trial by jury and a jury’s conviction of Alex Jones and imposition of steep damages shows that the high bar for proving libel does not prevent successful prosecution for libel, when the charge is diligently pursued and the case is strong enough.
Some valuable lessons
This is what India needs. Libel charges must cease to be criminal offences. In India, the process itself can impose punishment, regardless of the guilt or innocence of someone accused of libel. Slapping charges of criminal libel against a journalist and sending him or her to jail can be an effective form of gagging free expression.
A charge of libel must clear the high bar of actual malice to result in conviction leading to stiff penalties, but the accused journalist must be free from the threat of being jailed during the prosecution. The financial penalty for slandering someone must be sufficiently high, and the legal process must conclude within reasonable time. If these conditions are met, libel as a civil offence can curb media outlets from misusing their voice to spread fake news and propaganda.
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Social media platforms are no longer passive carriers of user-generated content, for which they carry no responsibility. They moderate content, perform editorial functions such as sorting content according to the orientation that matches that of the platform’s users, so as to funnel particular content to particular users, generate ‘stickiness’ and maximise advertising revenue. Social media must be burdened with the same responsibility vis-à-vis avoiding libel as mainstream media.
Fox News’ settlement with Dominion offers valuable lessons for media across the world that should not be wasted.
(The writer is a senior journalist based in Delhi)
(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal)