06 March 2023

A lot of heads must be aching at Fox News. On 16 February, Dominion Voting Systems filed a 170-page briefing as part of its US $1.6 billion defamation lawsuit against the network. The revelations it contained sent the international media into a frenzy, as some legal experts began predicting a costly defeat in court.

The international press has understandably focused on the potential damage to the highly influential and often controversial US network, and on the significance of a Dominion victory in an age of rampant disinformation in the media. But there is also a story to be told about the disinformation campaigns and conspiracy theories targeting voting machines and e-voting technology providers around the world.

Dominion is certainly one of the highest profile victims, yet their experience is far from unique. It is part of a broader pattern – the aim of which is to call the legitimate outcomes of democratic elections into question.

The trial, due to commence on 17 April, is likely to be a milestone for the e-voting industry.

Internal Messages 

Dominion had already outlined the details of the disinformation spread by Fox in its original complaint, filed on 26 March 2021. What is new in the latest briefing is a wide array of evidence suggesting that the network spread this disinformation knowingly. 

The document contains quotes from messages sent between news anchors and other network insiders, in the immediate aftermath of the 2020 US Presidential Election. In theory, this allows Dominion to demonstrate “actual malice” on the part of Fox News — a requirement for proving defamation in the USA. 

In several cases, Fox insiders mocked the claims the network was putting out on the air. Yet the broadcasts continued, allegedly for fear that their audiences would turn to rival news sources who had no scruples about peddling the “stolen” election narrative.

Less than two weeks after the publication of the briefing, a further bombshell followed: the deposition of network chairman Rupert Murdoch, in which he admits that several Fox News hosts “endorsed” false claims that the election was stolen.

His choice of words potentially undermines a central tenet of the network’s legal defense — namely, that they never explicitly endorsed the claims it was broadcasting, but merely reported on them. 

Repeated Broadcasts of Unfounded Claims

“Who am I? And how do I know all of this?… I’ve had the strangest dreams since I was a little girl … I was internally decapitated, and yet, I live… The Wind tells me I’m a ghost, but I don’t believe it.”

No, this is not the output of an AI chatbot gone off the rails. It is an email received by attorney Sidney Powell, and published in Dominion’s briefing. Alongside these and other incoherent ramblings, the email alleges that Dominion Voting Systems was the “common thread” linking a series of “voting irregularities” in several US states. 

For a brief spell, Powell was part of a legal team Donald Trump assembled to challenge the outcome of the 2020 US presidential election. Powell forwarded the email to Fox News on 7 November 2020, the day after most US networks called the election in Biden’s favour. It was to remain the sole “evidence” she provided to the network in support of her claims that Dominion was engaged in large-scale electoral fraud. 

The next day, the Fox News show Sunday Morning Futures put Powell on the air, allowing her to voice accusations against Dominion. During the broadcast, no mention was made of the dubious nature of the source her claims were based upon.

Over the weeks to follow, Powell was given further airtime by the network, in spite of her failure to produce any evidence, even while several prominent figures at the network privately mocked her claims, describing her as a “lunatic” and a “nutcase”.

Conspiracy Theories

During a broadcast on 30 November 2020, Powell alleged that: 

All the machines are infected with the software code that allows Dominion to shave votes for one candidate and give them to another and other features that do the same thing… Different states shaved different amounts of votes, or the system was set up to shave and flip different votes in different states.

This was one of several falsehoods repeatedly given airtime on the network in the aftermath of the election, including the erroneous suggestion that Dominion was owned by Smartmatic, and was founded in Venuzuela to help Hugo Chavez rig elections. 

During the months following the election, Dominion sent over 3,600 separate communications to various people within Fox correcting false allegations made on air, referring them to “verifiable third-party information.” On November 12, CISA released a statement declaring the election to have been “the most secure in American history”, and that “There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised”.

Dominion’s also launched a “setting the record straight” section on their website, featuring a detailed debunking of the conspiracy theories, and giving details of recounts in contested states. 

Dominion “setting the record straight” tweet, Nov 13 2020: 

Yet allegations to the contrary continued to be given airtime on the network.

Legitimate Concerns vs. Conspiracy Theories

On 17 January 2023 Fox News submitted an opening filing containing an extensive list of references to controversies surrounding the use of voting machines in general, and to Dominion products in particular. Their sources included major news outlets from across the political spectrum, such as the New York Times, the Wall Street Journal, Politico, and The Guardian.

It also included a reference to an ongoing court case in the US state of Georgia involving a report that claims to expose “vulnerabilities” in the security of certain Dominion voting machines. 

While the sources cited all raise concerns about potential vulnerabilities, Dominion’s defamation case hinges on Fox broadcasting claims that actual electoral fraud took place in the 2020 US presidential election. They did not merely report on potential vulnerabilities of the technology. They gave airtime to the claim that actual fraud was committed, and furthermore, that Dominion itself played an active role in overturning the result of the election. 

This pattern of spreading baseless claims against voting machines has since been repeated in both Brazil and Bulgaria. Dominion is presently engaged in several further defamation lawsuits related to the 2020 election, including against Sidney Powell and Trump lawyer Rudi Giuliani. 

Together with the Fox News suit, they have a combined value of over US $10 billion. 

Meanwhile, Smartmatic is pursuing its own defamation case against Fox News for perpetuating the claim that they helped “rig” the 2020 election. 

A legal victory for Dominion in their case against Fox News is unlikely to stop conspiracy theories surrounding e-voting dead in their tracks. Nonetheless, it could force influential media outlets to think twice before spreading disinformation about the industry — and this would be a big step forward.

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