Dominion, in turn, alleged that Fox News’ statements were false and defamatory 26 and sought punitive and economic damages. Fox News asserted various defenses, chief among them that the network’s reporting of newsworthy events was protected under the First Amendment, statements were not published with actual malice (i.e., intended to cause harm, which Fox stated that Dominion did not show with “clear and convincing evidence”), and Dominion did not suffer any damages. In fact, Fox News argued specifically that a reasonable viewer would understand the network was simply “fulfilling its journalistic duty to present newsworthy allegations made by others.” 27 The network also asserted that New York case law had established that, when the press repeated allegations later found to be false, a reasonable viewer would understand the allegations as “claims” rather than “facts.” In rejecting these lines of defense from Fox News, the Superior Court of Delaware 28 found that the statements were defamatory per se 29 because the network claimed that Dominion committed election fraud, among other key issues, and that “[n]o First Amendment protection enfolds false charges of criminal behavior.” Relying on longstanding jurisprudence around defamation in the State of New York, the Court was able to resolve this significant case. Its finding of defamatory statements per se and no defenses of freedom of speech led Dominion and Fox News to settle the case out of court for over USD $750 million. B. National Legal Frameworks A prescriptive legal framework directed at controlling the flow of information can often generate more challenges before a court. In some African jurisdictions (such as Uganda, Zambia, and Zimbabwe), laws dating to European colonization criminalized the spread of loosely defined “false information” on issues of public interest and have been found to be both unconstitutional and unjustified in modern democratic societies. 30 In the last decade, the number of laws prohibiting “false news” has also risen most notably in Asia and across the Pacific. Though many of these laws remain in effect, they ultimately fail the “necessity and legitimacy” tests set out under the ICCPR. 31 Dominion contended that: “i) [(Fox News Network)] FNN and [(Fox Corporation)] FC intentionally provided a platform for guests that FNN’s hosts knew would make false and defamatory statements of fact on the air; ii) FNN and FC, through FNN’s hosts, affirmed, endorsed, repeated, and agreed with those guests’ statements; and iii) FNN, with the participation of FC, republished those defamatory and false statements of fact on the air, FNN’s websites, FNN’s social media accounts, and FNN’s other digital platforms and subscription services.” Id. at p. 3. 27 Id. at p. 31. 28 Both parties are incorporated in Delaware, and Fox News has its headquarters in New York. See id. at Footnote 230, which states “[t]he Court made comments at the March 21–22 hearing that Delaware law may control on punitive damages. After a review of the case law, the Court agrees with the parties that New York Law applies to the issue of punitive damages.” 29 Under New York State law, Dominion needed to establish: 1) a false statement; 2) publication without privilege or authorization to a third party; 3) constituting fault as judged by the actual malice standard; and 4) that causes special harm or constitutes defamation per se, which includes accusations of a serious crime or business harm. See id. at p. 37. 30 Op. cit., UNHCR Special Rapporteur p. 11. 31 For instance, Vanuatu and Tonga adopted new criminal defamation laws in 2021, contrary to good practice which typically sees defamation as a civil matter. This appears to be part of broader backsliding around governments’ protection of human rights in the region. See Lee, K., and Natalegawa, A. (2021, June 11). Fake News Crackdowns Do Damage Across Southeast Asia During Pandemic. Center for Strategic & International Studies (CSIS). Public Media Alliance (2019, December 6). The rise of “fake news” laws across South East Asia. CIVICUS. (2021). State of Civil Society Report 2021. 26 10