In US Dominion, Inc., et al. v. Fox Corporation, et al., N21C-11-082 EMD CCLD (Del. Super. Ct. June 21, 2022), the plaintiffs (“Dominion”) alleged that Fox Corporation and Fox Broadcasting participated in the publication of defamatory statements made by Fox News Network (“Fox News”) accusing Dominion of election fraud. The defendants moved to dismiss the complaint. The parties disagreed as to whether Delaware procedural law or New York’s Anti-SLAPP law provided the legal standard that applied to the defendants’ motion. The Court adhered to its previous ruling in US Dominion, Inc. v. Fox News Network, LLC, N21C-03-257 EMD (Del. Super. Dec. 16, 2021) and applied Delaware’s procedural law at this stage of the proceedings. The Court would defer the applicability of New York’s Anti-SLAPP law to a later stage in the case.
For a defamation claim to survive under New York law, there must be an allegation that the defendants participated in the creation or publication of the statements at issue. The Court found that Dominion’s complaint pleaded facts permitting a reasonable inference that Fox Corporation participated in the creation and publication of Fox News’ defamatory statements.
Specifically, Dominion alleged that Fox Corporation relies on Fox News as its main profit vehicle; the executives of Fox Corporation, particularly Rupert and Lachlan Murdoch, have historically exercised a high level of control over the day-to-day operations of Fox News; these executives were closely involved with decisions relating to Fox News’ coverage of the 2020 election; these executives believed Fox News would benefit if it endorsed former President Trump’s election fraud narrative, and suffer if it did not; these executives encouraged the appearance of on-air personalities on Fox News to perpetuate false claims about Dominion; and, Fox Corporation rewarded those at Fox News who complied with the alleged instructions and punished those who did not.
The Court found that the allegations supporting direct liability overlapped with the allegations supporting proximate causation. The Court held that Dominion adequately pleaded facts supporting a reasonable inference that Fox Corporation proximately caused Dominion’s alleged injury.
As to actual malice, the Court noted that proof is required that the individual responsible for the allegedly defamatory statements had knowledge that the statements were false or recklessly disregarded the truth. Organizations cannot have institutional knowledge of falsity. Instead, when there are multiple actors involved in an organizational defendant’s publication of a defamatory statement, the plaintiff must identify the individual responsible for the publication of a statement, and it is that individual that the plaintiff must prove acted with actual malice. The Court found that at this stage, Dominion adequately pleaded actual malice with respect to Rupert and Lachlan Murdoch of Fox Corporation.
Dominion alleged that Fox Broadcasting operated as Fox Corporation’s agent in the broadcast and publication of the defamatory statements based on Fox Broadcasting’s conduct in reposting the statements onto fox.com. The Court explained that in cases involving republication of defamatory statements, the operative question is whether a defendant failed to investigate in the face of actual, subjective doubts as to the accuracy of the story.
The Court reiterated that organizations cannot have institutional knowledge of falsity. Actual malice must be alleged as to the persons having responsibility for the allegedly defamatory publication. However, Dominion did not specify who at Fox Broadcasting was responsible for publishing the defamatory statements, nor did it plead facts permitting an inference that such individuals knew the statements were false, acted in reckless disregard of their falsity, or that they failed to investigate in the face of actual subjective doubts as to the accuracy of the story. Thus, the Court found that Dominion failed to plead actual malice with respect to Fox Broadcasting.
The Court held that Dominion’s complaint adequately stated a claim for defamation per se against Fox Corporation, but failed to state a claim against Fox Broadcasting. Therefore, the Court granted in part and denied in part the defendants’ motion to dismiss.