Michael Bradley was Crikey’s lawyer in Lachlan Murdoch’s case against Private Media.
Lachlan Murdoch had just doubled the size of his case against Crikey, and the tactical choice to now sue over the August republication of Bernard Keane’s original June article was as obscure to us as his original decision to not do so.
However, that’s where we now were, and Murdoch’s change of plan presented both the necessity and an opportunity for Crikey to likewise expand its defence. The basics of the claim were identical for both article publications, since the “unindicted co-conspirator” line had remained.
The circumstances of publication had been very different. The June 29 article had been lobbed into a calm, unsuspecting sea, whereas the August 15 republication was attended by much publicity, immediately following a leak to The Sydney Morning Herald about the looming dispute. I should add, since Murdoch did specifically allege that the source of the leak was Crikey itself — or me — that we were certain it wasn’t.
Whereas our public interest defence for the June 29 publication was based upon the assault on American democracy in which Fox News played (and plays) a central role, our public interest defence to the August 15 publication was quite different. Essentially, the public interest issue, we argued, was the misuse of media power to silence critics and competitors. That was, after all, why Crikey (according to the publication) had decided to call out Murdoch’s litigation threat and go large.
That was going to make for an even more fascinating trial than had already been promised, as now we’d be wanting to explore Lachlan Murdoch’s own actions and motivations at much greater depth.
As our counsel worked away at the new defence, across the Pacific the exponentially more massive Dominion defamation case was trundling towards its own trial date, set for April. Dominion was suing Fox News and Fox Corporation for defaming it by promoting the stolen election conspiracy, which included utterly baseless lies about Dominion’s voting machine business.
Lachlan and Rupert, along with many other top Fox executives and on-air “talent”, had given depositions, and the discovery process had unearthed tonnes of internal Fox communications. Dominion argued that the evidence established beyond doubt that Fox knew it was broadcasting lies, but decided to do it in an attempt to keep hold of its rabid pro-Trump audience base (successfully).
During February and March, large volumes of material started to become publicly available in the Dominion case. It gave us, like everyone else, pause for thought, but for us with very specific context. What was coming out in the US was an unfolding catastrophe for Fox, and for the Murdochs. The evidence was damning. Frankly, it looked like Bernard Keane had, if anything, understated his case.
It also gave us a whole new defence. This one is called “contextual truth”, and it doesn’t often work. The idea is this: say Crikey had written that Murdoch was a serial killer who underpaid his taxes. He might sue for the defamatory slur that he was a tax cheat, in which case Crikey could plead in defence that the more damaging imputation — that he was a serial killer — was true. That’s the contextual imputation; if it is true and it overwhelms the imputations being complained about, even if the latter are lies, then there’s a complete defence. Really it’s a variation on the theme that you can’t be defamed by False X if True Y has already trashed your reputation comprehensively.
Our contextual imputation for Murdoch was that he was “morally and ethically culpable for the January 6 attack”. Our defence explained why: he controlled and managed Fox News, which promoted and peddled the stolen election lie, and he knew it was a lie and did nothing to prevent it.
To succeed, we’d have to prove that this imputation was conveyed by Keane’s article, that it was all substantially true, and that it was more damaging to Murdoch’s reputation for readers to think that of him than to think he’d done one or more of the things in his own 14 claimed imputations.
Interesting question: would it be worse to be thought of as a criminal conspirator with Trump, or as a recklessly mercenary and irresponsible media tycoon who traded in baseless conspiracy theories purely for profit? If one or more of Murdoch’s own imputations had been found to have been conveyed by the article, this then might have been the key battleground at the trial.
That was a long way ahead, however. First, we had to contend with Murdoch’s lawyers’ disinclination to agree that we should be allowed to run our new defence at all. So, in early April, we were back before Justice Michael Wigney again for a fight. The judge sided with Crikey, allowing us to run the contextual truth defence. What this meant was that another massive dispute was just over the horizon: we wanted to get our hands on the masses of evidence exposed in Dominion’s case, both publicly revealed and not. We weren’t expecting that to be handed over easily.
Our trial was still set for October. However, events here were once again overtaken by those in the US, as the start of the Dominion trial approached. On the first day, before the empanelled jury had heard a word of argument, the judge announced that Dominion and Fox had settled. Fox paid over $1 billion in our money to get out of it. What price is fair to keep a Murdoch from being cross-examined in open court? Quite a big one, it turns out.
The Dominion settlement had no direct effect on our case. It wasn’t evidence of anything, although of course we had been expecting the trial to expose more evidence of relevance to us than we’d already seen. So that was disappointing.
What we weren’t expecting was that within a day we’d get — not a phone call, not even a text — a letter from Murdoch’s lawyer, casually attaching for our information a notice of discontinuance that he’d already filed with the Federal Court.
Murdoch had dropped his case. Under the court rules, that means that he is automatically liable to pay Crikey’s legal costs of the entire litigation. It is what we call, in the trade, an unconditional surrender.
Murdoch was entitled to give up, as he had been entitled to commence. Both were his call, not for me to second-guess.
It’s a shame we won’t get to learn the answers to so many questions the case had posed about where Australian defamation law — and especially how it balances free speech against the reputations of the rich and powerful — now sits.
But, ultimately, I’m with Crikey — proud of it for taking a stand, and delighted that it won.
