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In the weeks after the election, guests on Fox News and other Trump-allied media outlets have repeatedly suggested that voting machine company Smartmatic helped rig the outcome for President-elect Joe Biden. The claims are problematic—not least because, aside from one in a California county, U.S. voters didn’t use Smartmatic machines in the first place.
For Smartmatic, the claims about its machines—which appear to have come primarily from the networks’ guests rather than the hosts—are not just frustrating examples of disinformation but a major business risk as well. According to its CEO, the company has lost contracts in other countries because of the controversy. As a result, Smartmatic issued a statement on Monday warning it will sue Fox News, as well as smaller media outlets NewsMax and OANN, for defamation if they don’t retract “dozens” of inaccurate statements.
Such statements include Trump attorney Rudy Giuliani telling Lou Dobbs of Fox News that Smartmatic owned Dominion, a rival voting machine company that has been the target of conspiracy theories promoted by the President. Meanwhile, former Trump attorney Sidney Powell has suggested to Fox that the recent election involved collusion between Smartmatic and Dominion as part of a broader scheme by foreign governments.
Such theories have been repeatedly debunked, with the Associated Press stating that “Both Dominion and Smartmatic have released statements saying no ownership relationship exists between the two competing firms.”
According to some observers, Smartmatic’s decision to threaten Fox and the other outlets with defamation claims could offer a new tool to combat the flood of disinformation unleashed by Presiden Trump and his allies following his election defeat. Erin Geiger-Smith, an election historian and author of Thank You for Voting, tweeted that other companies and individuals may undertake similar legal campaigns.
There is also the question of whether Smartmatic would succeed in court. According to long-time media lawyer Ed Klaris, companies are subject to the same rules of defamation as individuals—including the need to clear the high bar of “actual malice” in the event they are so-called public figures.
Klaris says it’s unclear if Smartmatic is so well-known that it would have to meet the actual malice standard. He also predicted that Fox would likely try to pass off the claims about the voting machines as opinion rather than statements of fact. While matters of opinion—including those thrown out in the hurly-burly of a talk show segment—are typically outside the realm of defamation, courts may find at least some of the “dozens” of allegedly false claims do not qualify as opinion.
Smartmatic’s potential lawsuits could also serve to bring judicial scrutiny of some of the more outlandish claims—like plots by Venezuela to rig the election—advanced by the likes of Giuliani and Powell. While the pair has repeatedly advanced such claims in the media, they have not included claims of fraud in their numerous court challenges. Legal watchers say this is because, as attorneys, they can be sanctioned for making baseless claims before a judge.
Fox News did not respond to a request for comment about Smartmatic’s allegations, nor did OANN. A spokesperson for Newsmax, which is positioning itself as a rival to Fox for Trump devotees, said it has never made direct allegations of impropriety about the company, but that its guests have commented on legal documents related to Smartmatic.
“As any major media outlet, we provide a forum for public concerns and discussion. In the past we have welcomed Smartmatic and its representatives to counter such claims they believe to be inaccurate and will continue to do so,” said the spokesperson.
The distinction between a media outlet’s positions and those of its guests may not always matter in court, however, according to Klaris. He notes that a victim of defamation is entitled to sue both the person who made the statement as well as the outlet on which the statement was aired.
Klaris also noted that, if Smartmatic has indeed lost out on contracts because of false claims about its voting machines, it will be in a strong position to seek damages.
“Absolutely, they’re suffering harm. That’s what libel law is meant to fix. It’s meant to fix reputational harm,” said Klaris.
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