What sort of country are we? That’s the question implicit in Lachlan Murdoch v Crikey | Richard Ackland

For Australian media, this case is important – it asks whether anyone is free to publish in the public interest a hyperbolic remark about a wealthy media baron

The newspaper buccaneer William Randolph Hearst explained to the father of Douglas Fairbanks Jr that he liked owning newspapers, “because you can crush a man with journalism”.

And when it came to Orson Welles and his film Citizen Kane, quite a lot of crushing went on.

Charles Foster Kane was Welles’ creation – an imagined portrayal of Hearst and his life at Xanadu, AKA San Simeon, with Marion Davies.

It was a lacerating attack on the newspaper baron’s rise to vast wealth and influence – so much so that Hearst and his allies set about destroying the career of the brilliantly talented Welles.

Hearst’s yellow press columnists attacked the film and Welles’ name was damned in print, even though Citizen Kane was and is considered among the greatest films ever made.

Hearst was the son of a wealthy mine owner and began with one small paper in San Francisco which he parlayed into a national chain of thunderers with 96-point front-page headlines.

He owned eight vast homes, packed with art and antiques, acquired the company of numerous women, and was an inveterate meddler in politics.

Some eerie similarities come to mind.

Welles never recovered professionally from the attack. Louis B. Mayer tried to buy the film in order to burn the negative. In any event, soon after it was released it was retired to RKO’s vault.

The Murdoch media business is the closest thing we have approximating the Hearst empire, which bestrode the narrow world like a Colossus – titans with resources to crush their critics.

After all, that was what defamation law was designed to do – to give the wealthy a legal mechanism to stomp on pipsqueaks.

Scandalum magnatum took hold during the reign of Richard II and was purpose built to provide remedies for dignitaries with thin skins.

Which gets us to Lachlan Murdoch v Crikey, the upstart news and commentary site that snipped at the heel of the heir to the throne and is now heading to a stage at the federal court for a full-blown production in March.

For the media this is as important a case as Ben Roberts-Smith v Fairfax – although for different reasons. Roberts-Smith was about newspapers fighting to defend their journalism about alleged war crimes in Afghanistan, allegations strenuously denied by Roberts-Smith.

The Murdoch case questions whether anyone is free to publish in the public interest a hyperbolic remark about an extraordinarily wealthy proprietor of an inflammatory and divisive media operation.

The focus is the claim that Murdoch is an unindicted co-conspirator of Trump’s attempted coup. It appeared in the headline and at the end of a Crikey article in June reporting White House aide Cassidy Hutchinson’s evidence to the 6 January select committee into the lynch mob that stormed the Capitol.

This defamation case has wider implications and implicitly poses a pressing question: what sort of country are we?

In the UK or the US, such a claim brought by Lachlan Murdoch would struggle to make headway.

In Australia, it gets the red carpet with multiple days of case management, and disputation over pleadings and discovery.

At this stage of the jousting, Murdoch’s application to toss out great chunks of Crikey’s case has been rejected by Justice Michael Wigney – which doesn’t mean it will be successful at trial, but at least it goes to trial.

The new defence available for publishing matters of public interest is untested and tricky. Murdoch’s lawyer claimed the media had been “sold a pup”, that the defence was worthless and there’s “not much to see here”.

This must have been a puzzle to the journalists and lawyers at News Corp, who had pressed for such a defence in the 2021 round of defamation reforms.

Wigney thought there was plenty to see here, in the process pointing out the defence has three layers. There’s an objective question – is an allegation about a connection between Fox News’ apparent election denialism and the uprising at the Capitol a matter of public interest?

If it is, did the defendant publisher believe it is in the public interest? This involves an exploration of the journalist’s and the publisher’s state of mind – a subjective exercise.

Then the last bit is whether that belief was reasonable. Needless to say, there are all sorts of tripwires here, accompanied by a sad history of judges considering the most meagre journalistic lapse to be unreasonable.

Importantly, Wigney did remind everyone that the “truth or falsity” of the article is not a relevant consideration of this defence.

There’s also a fallback position – that the matter was published concerning the implied constitutional freedom of communication about government or political matters (the Lange defence).

The publisher has given notice that its case raises a constitutional issue as to whether Lange requires reasonableness to be established. This could see the litigation mushroom with commonwealth and state government involvement at the trial.

An amended defence has been filed and it presses with points such as: that Murdoch has never publicly repudiated claims that the election was stolen from Trump; that no one would believe that Murdoch was a criminal conspirator or guilty of treason; that no serious harm has been done to Murdoch; that he has a bad reputation as CEO of Fox Corporation.

We also have a new reply from Murdoch on the file. It says Crikey was motivated by malice; that the publication failed to reach proper journalistic standards and was unreasonable; that the conduct of the publisher was part of a hypocritical and cynical scheme to boost subscriptions, gain publicity and engender sympathy.

Further, it is claimed the implied constitutional defence only applies to government and political matters in Australia, not the United States.

There were other interesting revelations: that Crikey paid “up to $100,000” for an advertisement in the New York Times challenging Murdoch to sue; prior to publication of the article, Crikey’s revenue was $3m from subscriptions; that the defendant company has defamation insurance; and the shareholders of the publishing company include wealthy individuals, some with assets of tens of millions of dollars.

It is also asserted that Crikey engaged a brand management company, Populares, seeking to turn the dispute with Murdoch into a marketing opportunity.

For the trial, Murdoch’s lawyers foreshadow calling an expert to give evidence about promoted tweets and the “grapevine effect”.

Lachlan Murdoch has indicated he will give evidence from the witness box. But first, there’s to be a mediation in the week before Christmas and another round of case management.

If the mediation fails, then the fractured state of American democracy and Fox’s role in amplifying it will be played out in an Australian court.

• Richard Ackland writes at 500 Words


Richard Ackland

The GuardianTramp

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