The Fox News case: defamation as a compliance risk

On the eve of trial Dominion Voting Systems secured a settlement of $787,500,000 in its defamation suit against Fox News for Fox’s false statements that Dominion had engaged in election fraud during the 2020 presidential election. 

There is undoubtedly much to be said about the compliance and ethics failings that led to the settlement, but I would like to leave everything political to others (at least in this post), and consider the defamation risks that all companies should consider.

Here are some initial thoughts about compliance.

Defamation is generally not considered to be in the first tier of compliance risks for corporations, the way that corruption, antitrust and fraud tend to be. But second-tier risks can still be significant.

Some specific components of a defamation compliance program might include:

– Risk assessment. Consider what kind of communications your salespeople have about competitors. . Given the nature of the products and services that you sell and the ways you go to market does defamation seem reasonably likely?

– Policies. Consider whether defamation should be mentioned in the code of conduct, a departmental policy or something else.

Training. Consider who should get targeted training on defamation. Consider what if any enterprise-wide training should be deployed.

– Procedures. For high-risk areas, consider preapprovals of risky activity by the legal department or other control functions.

– Third parties. Consider whether dealings with third parties pose special C&E challenges and so should be focused on in the risk assessment.

There’s much more to be said about this topic but hopefully this post will help some companies get started.