If he gets in the witness box, Lachlan Murdoch stands to win his defamation action against Crikey but the Australian news site is already triumphant. Michael West and Alan Austin report.
Lachlan Murdoch is suing Crikey for defamation. A $10 billion US media juggernaut is suing a $20 million small publisher Downunder, plus its politics correspondent Bernard Keane and editor Peter Fray. Goliath versus David.
Murdoch took exception to a Crikey article in June which described former US president Donald Trump as a ‘‘confirmed unhinged traitor’’ who had propelled the US into a ‘‘new and dangerous state of crisis’’. It added that News Corp’s owners ‘‘and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis’.’
The rub for Crikey is that in defamation is a narrow thing and, purely on the handful of words which are relevant to the Murdoch claim, Crikey may struggle to prove the central imputation that the Murdochs actually conspired with Donald Trump – even if the poisonous commentators of Fox News are demonstrably to blame.
The rub for Lachlan Murdoch is that judges don’t take kindly to litigants making a claim then not fronting up to Court to be a witness in their own case. And if he does front up, global scrutiny awaits. “The Streisand Effect”.
The article does not mention any particular Murdoch, neither Lachlan nor his father Rupert. ”Murdoch” appears in the headline and ”the Murdochs” (once) in the copy. Yet Lachlan Murdoch has drawn the imputation that he has been named as an unindicted co-conspirator with Trump in the Capitol insurrection of January 6, 2021.
Murdoch threatened to sue unless the story was taken down and remedies made. Peter Fray and Crikey’s chairman Eric Beecher called his bluff, publishing the exchange of letters with the Murdoch camp on August 22. Sue us, they said.
The case will be argued before Justice Michael Wigney in the Federal Court. Prominent barrister and defamation expert Sue Chrysanthou SC, will represent Murdoch. She successfully argued for actor Geoffrey Rush in a defamation action against News Corp Sydney tabloid The Daily Telegraph and unsuccessfully acted for Christian Porter in the Jo Dyer matter.
Michael Hodge, QC, who rose to prominence during the banking royal commission, will represent Crikey.
An open and shut case?
Private Media has outlined part of its defence, emphasising freedom of opinion and protection of public interest journalism. There may be an early settlement.
If this goes to court, the defence has two options. The first is honest opinion, which may succeed, but is not guaranteed. The second avenue under current defamation laws is the public interest defence, which requires the defendant to show it reasonably believed publishing its assertions, while critical of the complainant, benefitted the public.
Lachlan Murdoch v Crikey: we won’t bend to legal threats, says minnow publisher
It looks to be a fairly open and shut case, a case which Lachlan Murdoch should comfortably win. Bear in mind we are talking only about the central imputation in the case that Murdoch is an unindicted co-conspirator with Trump in the January 6 insurrection.
And that’s because – unless Crikey has a confidential email trail between Trump and Murdoch – it may be hard to prove that the two conspired in the assault on the Capitol.
Yes, he may be executive chairman of Fox. Yes, Fox’s toxic array of pundits fomented the uprising. But were they personally directed by the Murdochs? That is for Crikey to prove.
Could he have sacked Sean Hannity et al? Yes, but freedom of speech!
Big bucks for the little guys
Which brings us to the second point. It may be that Crikey has already won, or at least it is certain they have rolled the dice and had an early *financial* victory because they strapped on 3500 subscriptions in the first few days and may now be up to over 25,000.
On top of that, they have already crowdfunded $480,000 in donations. In terms of global interest, this makes the Ben Roberts-Smith case look like a local derby. Roberts-Smith, a Victoria Cross holder, has taken defamation action against The Sydney Morning Herald, The Age and The Canberra Times over what he claims are wrongful allegations of war crimes.
In a public sense the case has backfired for Roberts-Smith because so many of his soldier peers have testified against him. It has not improved his reputation, quite the opposite.
The Murdoch case is a company maker for Crikey, a digital publishing pioneer launched by activist shareholder Stephen Mayne in 2000 and, like any publisher worth its salt, a seasoned fighter of defamation claims.
But it is very early days. In defamation, the side with the biggest wallet has a distinct advantage. The Roberts-Smith case has already racked up $30m to $35m in legal costs, one person close to the lawsuit told MWM. At one point, Minter Ellison (acting for Nine) had 20 solicitors on the job.
Will Lachlan Murdoch himself decide to appear? That is the big question. He won’t want to get into the witness box, but his chances are dramatically improved if he does. Crikey can call him as a witness but you can’t cross examine your own witness. That means it is up to the plaintiffs to call him.
If Murdoch does appear, it will be a global affair, such is the interest in News Corp and Fox News and US politics. As costs rack up for Crikey, the case may go to issues of executive control and responsibility over the shrill choir of Fox News commentators.
That is where Lachlan Murdoch has a distinct advantage: endlessly deep pockets.
The irony of this case is that it could not have happened in the US simply because the US has no *federal* defamation laws (23 states have them). It has free speech. In Australia, on the other hand, we don’t have free speech; rather, the world’s most draconian defamation laws, laws which favour the rich over the rest.
Witnesses who should be keen to testify against News Corp include academics, public servants, former News Corp journalists and editors and former prime ministers Kevin Rudd and Malcolm Turnbull. Last Wednesday, Turnbull told NPR in the USA that,
Fox News has played, by far, the largest single part in the polarisation of American politics, in the amplification of political hatred … Fox News is not the only source of this madness, but it is by far the single most influential one.
As for the “continuing crisis”’ described by Crikey, the facts are clear.
What Trump hath wrought
There is abundant documentary evidence that the US has suffered extraordinary dislocation, division, violence and deaths since 2016. Hate crimes surged in 2017 and later.
Police officers shot increased in 2019 by 32 per cent over 2018 and have risen further since. Children aged 0 to 17 killed by firearms reached new all-time highs in 2016, 2017, 2020 and 2021. The tally so far this year is a staggering 1139 children dead. This has steadily declined to zero in comparable developed countries.
Mass shootings surged to 610 in 2020. The average number from 2014 to 2018 was 335. The total hit an all-time high of 692 last year. Total violent crimes surged in 2016 and have remained high. The US is now the only OECD member country to register declining life expectancy.
Since 2016, the US has also become the outlier in the developed world in social outcomes besides violent crime. These include poverty, homelessness, Covid deaths, suicides, national budget deficits, national debt, the corruption index, incarceration rates.
Throughout the Covid pandemic, Trump lied about China’s role in the global spread and made multiple false assertions on Fox News about prevention and treatment. Deaths among Trump followers soared.
So what happened in 2016 which led to this sudden descent into dystopia? There should be no problem finding expert witnesses in social studies who connect this directly to Trumpism and its media enablers.
They should readily be able to prove that in 2016, one major American media organisation – News Corporation – and several smaller copycats began a concerted campaign of fomenting anxiety, fear, racial hostility, anger and hatred through false reports attacking perceived enemies and repeated calls to violence. This proved extremely effective in increasing reach and revenue.
Trump appointed many Fox News personnel to White House positions. Business Insider has listed 21 Fox people who went to work for Trump. Trump used Fox as his go-to media outlet whenever he wanted a forum. Fox gave Trump unlimited time, seldom interrupted him and refused to check his ‘‘facts’’. It then amplified Trump’s allegations against his opponents and spread his conspiracy theories at every chance.
We now have the testimony in court of several hundred January 6 insurrection defendants, the perpetrators of the 119 school shootings since 2016, the perpetrators of the 2,854 mass shootings since 2016 and others convicted of violent crime.
Many of them clearly believe the falsehoods News Corp has been spreading and are motivated by precisely the hate and anger those lies have fomented. Several January 6 defendants, including Dustin Thompson, have used “President Trump told me to do it” as their defence in court.
Exposing this reality further definitely serves the public, but in the end, an Australian court may think that doesn’t matter. Such are our arcane and ridiculous defamation laws.
Alan Austin is a freelance journalist with interests in news media, religious affairs and economic and social issues.
Michael West established Michael West Media in 2016 to focus on journalism of high public interest, particularly the rising power of corporations over democracy. West was formerly a journalist and editor with Fairfax newspapers, a columnist for News Corp and even, once, a stockbroker.