The $787.5 million settlement of the Dominion Voting Systems v. Fox News lawsuit should serve as a warning for radio about possible defamation lawsuits that could arise this election season, especially in cases of attack ads placed by non-candidate groups.
“The Fox case sends the message to media companies that defamation claims against public figures are alive and well and have the potential to result in substantial liability,” veteran communications lawyer David Oxenford writes on Broadcast Law Blog. “The same issues that arose in the Fox case can arise in cases where broadcasters run political ads knowing or with reason to believe that they are false.”
Oxenford stresses vigilance when assessing non-candidate attacks on opposing candidates that may contain false information. Station management must ensure the claims made in the ad are legitimate, particularly when they are put on notice that the ad may be false.
“[Fox News] supervisors knew that the on-air claims relating to Dominion were false but nonetheless allowed them to be broadcast repeatedly, seemingly based on the profit motive of retaining an audience that wanted to believe the false claims,” Oxenford writes. “This same profit motive exists when a broadcaster or cable company is approached with an attack ad.”
Oxenford, a partner in the law firm of Wilkinson Barker Knauer LLP, says once a candidate who has been attacked in such an ad has their attorney notify the station that the ad contains false information, the station “must investigate the matter and, if the ad is indeed false, pull it from the air.”
Fine lines need to be drawn, he cautions, “as many attack ads are carefully worded to be factually true, but by implication damning. But, where the ads are in fact false, there is real risk.”
As always, consult your station’s legal department if any such claims of running a non-candidate political ad that may contain false information.