Crikey to test new public interest defence in Murdoch defamation fight

Online news outlet Crikey has confirmed it will deploy a new public interest defence in its defamation battle with Lachlan Murdoch, in what is likely to be the first test of the law in Australia.

Private Media, Crikey’s publisher, will also dispute that the article at the centre of the Federal Court case inflicted serious harm on the reputation of the News Corp co-chairman.

Private Media chairman Eric Beecher, Trump supporters outside the Capitol on January 6, 2021, and Lachlan Murdoch.Credit:Thom Rigney, AP, Getty Images

Murdoch, chief executive of Fox Corporation and eldest son of media baron Rupert, filed defamation proceedings against Crikey last month over a June 29 article naming his family as “unindicted co-conspirators” of former US president Donald Trump following the deadly 2021 US Capitol riots.

He alleges the article conveys a range of false and defamatory meanings, including that he “illegally conspired with … Trump to incite an armed mob to march on the Capitol” on January 6, 2021.

A June 29 article, republished on August 15, is at the centre of Lachlan Murdoch’s Federal Court defamation suit against Crikey.

In a defence filed in the Federal Court late on Tuesday, Crikey argues the article does not defame Murdoch as alleged and denies it satisfies a new serious harm test that is now law in most parts of Australia, including in NSW where the trial will be held.

Under that test, which is aimed at weeding out trivial claims, Murdoch must show the article “caused, or is likely to cause, serious harm” to his reputation.

Crikey denies any of 14 defamatory meanings alleged by Murdoch were conveyed in the article by political editor Bernard Keane, headlined “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator”.

If the court finds at least one meaning was conveyed and the serious harm test is satisfied, it will consider defences pleaded by Crikey.

Under the new public interest defence, which started in NSW in July last year and has yet to be tested, Private Media must prove the article concerned an issue of public interest and it “reasonably believed that the publication of the matter was in the public interest”.

The court must consider all the circumstances, and may examine “whether a reasonable attempt was made by the defendant to obtain and publish a response”. The case may provide guidance on how the defence operates in the context of opinion writing rather than investigative reporting.

In its written defence, Crikey says Keane believed Fox News “played an essential role in amplifying the division that Trump had caused” after his election defeat in 2020 “and felt that any discussion of 6 January would be recklessly incomplete without an understanding of the media environment in the United States”.

The lawsuit was filed against Private Media, chaired by Eric Beecher, Keane and Crikey editor-in-chief Peter Fray. The defence says neither Fray nor Keane considered it necessary to contact Murdoch for comment because he was not a target of the article and it was “an opinion piece, not news reporting”.

Private Media says it reasonably believed the article was in the public interest. Fray and Keane believed the references to the Murdochs were “self-evidently hyperbolic” and “no one would read the words literally as suggesting that the Murdochs were guilty of criminal conspiracy”, the defence says.

Crikey is also seeking to rely on a specific variant of an older public interest-style defence known as qualified privilege that encompasses the implied constitutional freedom of communication on government and political matters. It is unclear whether this defence, if available, would offer greater protection than the new public interest defence.

In a reply filed in court, Murdoch’s lawyers deny the article concerns a matter of public interest. They accuse Crikey of seeking to “boost subscriptions, gain publicity and/or engender public sympathy”.

In a statement on Wednesday, Private Media chief executive Will Hayward said: “Taking on this fight is risky and we are not foolish enough to predict its outcome.

“However, we believe that there is an issue of fundamental public importance at stake, and this is why we are defending the case brought against our company and our journalists.”

Hayward said that “from here, we must largely hand the matter over to the courts”.

“While other media outlets will be free to critique the process and offer all kinds of opinion on the matters at stake, we intend to largely remain silent.”

Crikey advertising on an electronic billboard on Kings Way in Melbourne.Credit:Simon Schluter

Private Media has been running digital billboards spruiking Crikey in Melbourne since Monday and an advertisement ran in The Australian Financial Review on Wednesday.

The advertisements included the tag lines “mogul-free journalism”, “fearless news and views daily”, and “not for the thin skinned”. Private Media’s chief growth officer Kevin Cooper said money for the campaign was drawn from its existing advertising budget and not from crowdsourced funds for the litigation.

“The advertising is tied back to what Crikey is and what it stands for … the whole campaign is about showing people about how we hold the rich and powerful to account, which has been the mantra for many years,” Cooper said.

The article at the centre of the case was removed from Crikey’s website when Murdoch’s solicitor wrote to the news outlet on June 29. It was republished on August 15.

Murdoch’s lawyers allege in a statement of claim that the article was republished on the “pretext” that it was a response to “recent media reports”, and accuse Crikey of contacting The Sydney Morning Herald before the latter published an August 14 article about legal letters between the parties. Crikey denies this.

Moves to file the proceedings had already begun on August 22 when Crikey published months of legal correspondence between it and Murdoch’s lawyers and ran an open letter in The New York Times outlining its desire to defend the matter in court. The case was filed officially on August 23.

Crikey argues Murdoch was not identified by the article, which did not name him personally, until it was republished in the context of Murdoch’s legal letters on August 15.

The parties appear in court for the first time on Friday for a preliminary hearing.

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