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In the weeks following the election, guests from Fox News and other Trump-allied media have repeatedly suggested that voting machine company Smartmatic helped rig the result for President-elect Joe Biden. The claims are problematic, not least because, aside from one in a county in California, American voters did not use the Smartmatic machines in the first place.
For Smartmatic, claims about its machines – which seem to come mostly from network guests rather than hosts – are not only frustrating examples of misinformation, but also a major business risk. According to its CEO, the company has lost contracts in other countries because of the controversy. As a result, Smartmatic has issued A declaration Monday, warning that he will sue Fox News, as well as small media NewsMax and OANN, for defamation if they do not remove “dozens” of inaccurate statements.
Among those statements, Trump’s lawyer Rudy Giuliani told Fox News’s Lou Dobbs 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 suggested to Fox that the recent election involved collusion between Smartmatic and Dominion as part of a larger plan by foreign governments.
These theories have repeatedly been demystified, with The Associated Press stating that “Dominion and Smartmatic have both issued statements claiming that no ownership relationship exists between the two competing companies.”
According to some observers, Smartmatic’s decision to threaten Fox and other media outlets with libel lawsuits may offer a new tool to fight the flood of disinformation unleashed by President Trump and his allies following his electoral defeat. Erin Geiger-Smith, election historian and author of Thank you for voting, tweeted that other businesses and individuals may undertake similar legal campaigns.
There is also the question of whether Smartmatic would succeed in court. Longtime media lawyer says Ed klaris, corporations are subject to the same defamation rules as individuals – including the need to pass the high bar of “true malice” in the event that they are so-called public figures.
Klaris says it’s not clear whether Smartmatic is so well known that it should meet the standard for actual maliciousness. 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 questions of opinion – including those dismissed in the tumult of a talk show segment – are generally outside the realm of defamation, courts may find that at least some of the “dozens” of alleged false claims are not considered opinions.
Smartmatic’s potential lawsuits could also serve to bring about a judicial review of some of the more outlandish claims – like Venezuela’s plots to rig the election – put forward by figures like Giuliani and Powell. Although the couple have repeatedly made such allegations in the media, they have not included the fraud allegations in their numerous court challenges. Legal observers say this is because, as lawyers, they can be sanctioned for making unfounded claims before a judge.
Fox News did not respond to a request for comment on Smartmatic’s claims, nor did OANN. A spokesperson for Newsmax, which positions itself as a Fox rival for Trump followers, said he never made direct allegations of impropriety against the company, but that his guests had commented on legal documents related to Smartmatic.
“Like any major media, we provide a forum for public concerns and discussions. In the past, we have welcomed Smartmatic and its representatives to counter these claims that they believe are inaccurate and will continue to do so, ”the spokesperson said.
However, according to Klaris, the distinction between the positions of a media outlet and those of its guests does not always matter in court. He notes that a victim of defamation has the right to sue both the person who made the statement as well as the medium on which the statement was broadcast.
Klaris also noted that, if Smartmatic has indeed lost contracts due to false allegations about its voting machines, it will be in a good position to seek damages.
“Absolutely, they are harmed. This is what the defamation law is supposed to correct. It aims to repair damage to reputation, ”said Klaris.
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