Murdoch v Crikey: How a mere 804 words became a test case that could run into the millions
Defamation fights have erupted over fewer words, but a mere 804 words published by Crikey this year look set to become the most expensive, contested and well-publicised words in the history of the 22-year-old online news outlet.
Millions of dollars in legal costs are expected to be spent as News Corp co-chairman and Fox Corporation chief executive Lachlan Murdoch, eldest son of media baron Rupert, sues a comparative minnow in Australia, Crikey, for defamation over a June 29 article.
Private Media chair Eric Beecher (left), the US Capitol on January 6, 2021, and Lachlan Murdoch (right).Credit:Thom Rigney, AP, Getty Images
Those hoping the Federal Court case will expose the inner workings of Fox News are likely to be disappointed.
Instead, the trial is expected to be a test case of sorts for a new public interest defence that is now part of the defamation law across most of Australia, including in NSW where the case was filed, although the quasi-opinion piece at the centre of the stoush may prove a poor vehicle for testing that law.
The defence could not be deployed in recent high-profile defamation cases, such as war veteran Ben Roberts-Smith’s lawsuit against this masthead, because they were filed before the new law took effect on July 1 last year.
Michael Douglas, senior lecturer at the University of Western Australia Law School, said: “The case will be a decent test for the 2021 amendments [to the defamation law]. Do they protect journalism as intended?”
MURDOCH v CRIKEY
- Lachlan Murdoch filed defamation proceedings against online news outlet Crikey in the Federal Court on Tuesday.
- His lawyers allege an article published on June 29, which was deleted before being republished on August 15, defamed him by naming his family as “unindicted co-conspirators” of former US president Donald Trump following the deadly US Capitol riots in January 2021.
- Crikey, which has yet to file a defence, is expected to argue the article does not convey the defamatory meanings alleged by Murdoch. It is also likely to seek to rely on a new public interest defence.
- While there have been calls in recent days for the Federal Court to have jury trials in defamation cases, it already has this power. However, its judges have made clear the circumstances in which a jury will be ordered in a defamation trial are limited.
- A jury trial may be ordered by the Federal Court in a case in which “community standards” might bear upon the issue of whether a particular statement is defamatory.
The public interest defence was “best suited to protect investigative journalism”, Douglas said. “But I reckon it would have work to do here however one characterises the Crikey story.”
University of Sydney Professor David Rolph said the defence “focuses on the reasonable belief of the publisher as to whether the matter is of public interest”.
But Rolph added that “it’s not clear how courts will apply this new defence, and whether it will lead to different outcomes to earlier broad-based defences to defamation”. Those defences have been marshalled by mainstream media outlets with limited success.
The June 29 article, republished on August 15, that is at the centre of Lachlan Murdoch’s Federal Court defamation suit against Crikey.
Murdoch will also have to satisfy a new serious harm test before he can bring the proceedings, a change modelled on British law that is aimed at weeding out trivial claims. But the serious harm requirement was designed chiefly with low-level spats involving limited audiences – often referred to as “backyarders” – in mind.
“Things like the prompt removal of defamatory content online, a complete retraction or apology are the sorts of things that could mitigate, or completely eradicate, serious harm to reputation,” Rolph said.
Douglas said it was likely Murdoch would be able to overcome the serious harm threshold “given how many people have read the piece – and given Crikey’s conduct, in recent days, of drumming up even more views of their article”.
Crikey was accustomed to receiving legal correspondence from Murdoch when it received a missive from his solicitor John Churchill on June 30 this year – it was the fourth time he had asked for an apology over an article. That’s a relatively small number in context: Crikey has written more than 1000 articles referring to the family, and more than 100 mentioning Lachlan Murdoch.
While the article was removed within minutes of receiving the letter, it was re-published on August 15. Will Hayward, chief executive of Crikey’s publisher, Private Media, said the request for an apology this time was “too absurd”.
Will Hayward, chief executive of Private Media.
“[In previous cases], we were doing the legal dance,” he said. “You either do an apology, pay his legal fees, delete the article and beg for forgiveness, or take on a billionaire.”
The news outlet took a calculated risk on Monday in challenging Murdoch, via an open letter in The New York Times, to sue it over the article “so that we can test this important issue of freedom of public interest journalism”. It also published all previous correspondence with Murdoch’s lawyers.
“We want to defend those allegations in court,” read the open letter, signed by Eric Beecher, chairman of Crikey’s publisher, Private Media, and Crikey editor-in-chief Peter Fray.
Hayward took exception to accusations Crikey was cynically seeking to drum up subscribers by publicising its fight. On Friday, it formally launched a crowdfunding campaign to help cover its costs.
“We are going to have to try and bring as many people to our side as possible, or we not only suffer the legal costs in the short term, but the potential extraordinary outcome at the end of all this where we might get saddled with damages and their legal costs,” he said.
But the media strategy may have financial consequences. While Crikey has defamation insurance that would cover damages and legal costs if it loses the case, it may not be able to rely on the policy in this instance. Most insurance schemes have a clause that voids any claim if a company acts in a way that triggers an award of aggravated damages on top of the standard damages for non-economic loss (the latter are capped at present in defamation cases at $443,000, a figure that is adjusted annually).
The court is empowered to award aggravated damages if it finds Crikey engaged in “improper or unjustifiable conduct” that increased the hurt to Murdoch.
The news outlet’s long-time lawyer, Melbourne-based MinterEllison partner Peter Bartlett, had written to Murdoch’s lawyer on July 7, after the initial legal letter was received on June 30. The publisher rejected Murdoch’s claims, but Bartlett said the article had been removed “as a goodwill gesture”, effectively short-circuiting a lawsuit.
But on August 15, Crikey changed tack and re-published the article, before launching its public campaign. The moves crystallised Murdoch’s decision to sue. Sydney-based lawyer Michael Bradley, managing partner at law firm Marque Lawyers and a sometime Crikey columnist, took over responding to Murdoch’s lawyers on July 27.
Crikey said this week the switch in lawyers for this project was “to keep the Murdoch matter separate from other legal affairs”, but it also appeared to herald a change in legal strategy to Bradley’s no-holds-barred approach.
While it is not clear why Murdoch took particular umbrage to the article by Crikey’s political editor Bernard Keane, in light of the proliferation of less-than-flattering articles penned about the Murdochs and Fox News worldwide, it is even less clear what a Federal Court judge will make of it. It will be up to the judge to decide if the article identifies and defames Murdoch by conveying any of the meanings his lawyers allege were carried by it. If so, the judge will move on to consider whether any defences have been established.
Tagged as analysis on Crikey’s website, the article focuses chiefly on the deadly 2021 US Capitol riots and former president Donald Trump’s role in inciting the mob as part of his bid to prevent confirmation of the 2020 presidential election result.
Murdoch’s lawyers, including high-profile defamation silk Sue Chrysanthou, SC, argue the article carries a range of false and defamatory imputations, including that the Fox chief executive “illegally conspired with Donald Trump to incite an armed mob to march on the Capitol [on January 6, 2021] to physically prevent confirmation of the outcome of the 2020 presidential election”. Crikey does not believe it said this, and has conceded in legal correspondence that there is “no evidence” Murdoch did so.
The surname “Murdoch” appears once in the article, in the headline, which brands Trump a “confirmed unhinged traitor” and Murdoch “his unindicted co-conspirator”. Crikey has said this would be understood as a reference to Rupert.
Keane writes that Trump enjoyed the support of “the world’s most powerful media company, which continues … to peddle the lie of the stolen election and play down the insurrection Trump created”.
“The Murdochs” and “Fox News” are mentioned only once in the article’s final paragraph, which reads: “Nixon was famously the ‘unindicted co-conspirator’ in Watergate. The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.”
While commentators have suggested Murdoch could not bring the same proceedings in the United States and Crikey is a victim of Australia’s pro-plaintiff defamation laws, the position is slightly more nuanced.
Douglas said Murdoch was on “far stronger” ground suing for defamation in Sydney but “I would not say that a claim under US law would be hopeless”.
“In the US, defamation law includes a ‘public figure’ doctrine,” he said. “It requires a claimant who is a ‘public figure’ to show with convincing clarity that the defendant published false, defamatory material with actual malice.”
Murdoch was very likely a public figure for those purposes, Douglas said, meaning he “would have the burden of proving what was written by Crikey was false, which is the reverse of the position of Aussie common law”.
“He would also need to prove that Crikey acted with malice, which means that Crikey published its story with knowledge that it was false or with reckless disregard of whether it was false or not. Proving this may be difficult. On the other hand, Crikey’s conduct in daring Murdoch to sue is the kind of thing that might assist his case.”
The parties will appear in court for the first time later this year.
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