A Crikey article which said the Murdoch family was an “unindicted co-conspirator” in the January 6 riots was “self-evidently hyperbolic”, publisher Private Media has argued in court documents defending a defamation suit from Lachlan Murdoch and filed in the federal court.
Last month the co-chair of News Corp filed proceedings for defamation against the independent news site over an article by politics editor, Bernard Keane, headlined “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator”.
Murdoch began proceedings after the website republished the article on 15 August, after initially taking it offline when the Crikey editor-in-chief, Peter Fray, received a concerns notice on 30 June.
Crikey then published all the legal correspondence between lawyers for both parties and bought a full-page ad in the New York Times and the Canberra Times inviting Murdoch to sue them.
Private Media was pleading three defences: the new public interest defence, implied freedom of political communication and failure to accept reasonable offer of amends.
The company said the article did not suggest the Murdochs were guilty of criminal conspiracy.
“No one would read the words literally as suggesting that the Murdochs were guilty of criminal conspiracy or treason under US law,” the defence said, filed in the federal court ahead of a preliminary hearing Justice Michael Wigney in Sydney on Friday.
Murdoch has retained barrister Sue Chrysanthou SC and solicitor John Churchill and Private Media has barrister Michael Hodge KC, who was counsel assisting in the royal commission into the banking sector.
The references to the Murdochs in the article used “creative licence to pick up on the notorious identification of [former US president Richard] Nixon as the ‘unindicted co-conspirator’ in Watergate and drawing a parallel to the January 6 riots”, the defence said.
Private Media said the article did not cause serious harm to Murdoch because of his alleged “bad reputation … among the Australian people for his role as CEO of Fox News”.
Murdoch is not the chief executive of Fox News, he is the chief executive of the parent company, Fox Corporation, and Suzanne Scott has that role.
Private Media argues the references to Murdoch were a statement of Keane’s opinion, “based on his knowledge of the extensive reportage of Fox News’ involvement in the events leading up to Jan 6 and the Murdochs’ role as the guiding minds of Fox’s editorial strategy and programming”.
Neither Keane nor Fray considered it necessary to contact Murdoch for comment because he was not the target of the article and the article was an opinion piece, not news reporting.
At the time of publication, Fray and Keane, who are both respondents, were conscious of the importance of freedom of expression in the discussion of matters of public interest, they said.
In its statement of claim filed last month, Murdoch’s lawyers said Crikey used the legal threat to drive subscriptions. When it was first published on 26 June the article was viewed approximately 6,867 times until it was removed; after it was reposted it was viewed 58,380 times.
Murdoch’s lawyers said the article, headline and related social media posts carry a number of “highly defamatory and false imputations about him”, were not in the public interest and were part of a cynical scheme to harm Murdoch.
In a response to the defence filed in the federal court, Murdoch’s lawyers said they will ask the judge to strike out much of Private Media’s defence because it is “embarrassing and irrelevant to any fact in issue other than to the extent that they were matters in [their] minds”.
The paragraphs Murdoch’s team said are irrelevant include a timeline which details how Keane told Fray he had seen the evidence of Cassidy Hutchinson before the January 6 committee and that he should write about it and that Fray agreed; and Keane’s “extensive university qualifications in history, including a PhD” and “extensive experience working in the commonwealth public service on Australian media policy”.
The defence included a list of Keane’s articles as well as media commentary concerned with the role of Fox in the January 6 riots.
“Both Mr Fray and Mr Keane firmly believed that: the references to Mr Murdoch were a statement of Mr Keane’s opinion, based on his knowledge of the extensive reportage of Fox News’ involvement in the events leading up to Jan 6 and the Murdochs’ role as the guiding minds of Fox’s editorial strategy and programming,” the defence said.
