What’s in the public interest? Murdoch v Crikey trial could test new defamation defence

Lachlan Murdoch says independent Australian publisher can’t rely on defence after it connected media baron to evidence at hearing into January 6 riots

Lachlan Murdoch’s role as the controller of his family’s media conglomerates in the US and Australia was “inseparable” from the reputation of those organisations, the federal court has heard.

The relevance of Murdoch’s leadership of the US Fox Corporation and its role in the January 6 riots was discussed at length in a preliminary hearing for the upcoming defamation trial against Private Media’s Crikey.

Lawyers for Murdoch say the article falsely claimed, among other imputations, that Murdoch “illegally conspired with Trump to overturn the presidential election result” and “knowingly entered into a criminal conspiracy with Donald Trump and a large number of Fox News commentators to overturn the 2020 election result”.

Murdoch’s barrister Sue Chrysanthou SC wants parts of Crikey’s defence struck out because she says they are irrelevant, embarrassing and will waste time at the trial.

Chrysanthou argued on Monday it was not necessary for the court to watch an incalculable number of hours of Fox News coverage to establish whether Crikey could successfully use the new public interest defence.

She argued the new defence – which has not been tested in a case yet – was not applicable to Crikey. “The new dawn promised to the media by reason of this defence is not going to happen,” she said.

But Private Media’s barrister Michael Hodge KC said the context of Murdoch’s role at Fox and the lies told by Donald Trump and Fox News commentators about the US election were relevant to the public interest defence.

“It is either true or untrue that Rupert Murdoch, members of the Murdoch family who control these global media conglomerates and Lachlan Murdoch have not disavowed the lies about the US presidential election,” Hodge said.

Justice Michael Wigney said the issue of what could be argued as a public interest defence under the new defamation laws was “complex” and he reserved his decision.

To rely on the public interest defence, Crikey needed to show politics editor Bernard Keane held a reasonable belief that what he wrote was in the public interest, Chrysanthou said.

“We are saying there was no matter of public interest that connected my client to that [US Capitol hearing] evidence,” Chrysanthou said.

In August, the co-chair of News Corp filed proceedings for defamation against the independent news site over an article by Keane headlined: “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator.”

Chrysanthou on Monday said the only co-conspirators identified were “persons with my client’s surname” and Fox News commentators.

In the final paragraph Keane “out of nowhere” compared her client with Richard Nixon, an unindicted co-conspirator in the Watergate controversy, the barrister said.

“The article was about a criminal who had committed an indictable offence and got away with it. And the reader is told there is extensive evidence of my client engaging in a plot with the unhinged traitor [Trump], so-called. That’s what this article is about.”

Murdoch is also claiming Keane and Crikey’s editor-in-chief, Peter Fray, were motivated by malice, predominantly acting to harm Murdoch.

Private Media has applied to have that claim struck out. It has denied the article defamed Murdoch as alleged and will argue it didn’t cause serious harm to him.

Murdoch is seeking aggravated damages and an injunction to prevent Crikey from republishing the article and its imputations.

A nine-day trial is due to start in late March 2023.


Amanda Meade

The GuardianTramp

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