Defamation is conceptually difficult for non-lawyers (and a lot of lawyers) because of this counter-intuitive fact: being able to say that you have been defamed, and having a judge find that you’re right, is not to win the case. It just buys you a ticket to the game.
In our law, defaming someone is as easy as opening your mouth or hitting “send”; if what you publish about the other person would, on the balance of probabilities, cause a hypothetical reasonable person of average intelligence to think less of them, then they have been defamed.
However, the complainant has to say exactly how, and the law holds them to the defamatory meanings they allege. Lachlan Murdoch claimed that when Crikey called him an “unindicted co-conspirator” of Trump, the hypothetical reasonable reader took that to mean that Murdoch was personally involved in a conspiracy to overturn the election result.
Murdoch had the burden of proving that this was what Crikey had conveyed. He also had to prove two other things: that the “Murdoch” was him in the reader’s mind, and that he had suffered “serious harm” as a result of the publication.
Causing harm
The serious harm threshold is one of the two key new elements of Australian defamation law introduced in 2021, and has been so far untested in a superior court. Murdoch pleaded that his previously untarnished reputation had been devastated by Crikey’s words. Crikey denied this, and went further: it alleged that Murdoch’s reputation was already bad. Thus, even if he had been defamed, it couldn’t have done him any harm.
Murdoch was suing Crikey only on the original June 29 publication of Bernard Keane’s article. He had not issued a fresh concerns notice after Crikey reposted the article on August 15, and in his statement of claim he said he was not complaining about that second publication — except so far as it had exacerbated the damage to him that the first publication had initiated.
This is what we call aggravated damage in defamation law; if a publisher does things that add to the harm its original publication already caused, then the court can award extra damages as a result — on top of the “general” damages for hurt feelings and reputation loss. While general damages are capped (at $433,000 for this case), aggravated damages are not.
It was common ground that Crikey had been quite aggravating. Putting an ad in The New York Times will do that. So, if Murdoch had been defamed and Crikey had no good defence, then it was going to be up for some aggravated damages. However, Murdoch had to win first.
Crikey’s lines of defence cascaded in this way. First, it said that the Murdoch referred to in its article wasn’t Lachlan (that is, no reader would have thought it was him). Second, none of Murdoch’s alleged imputations had been conveyed at all. Third, he couldn’t prove he had suffered serious harm. If he failed on any of these, he’d be stopped at the gate.
If he got through the gate, then Crikey’s positive defences would come into play. It didn’t plead truth, which is a complete defence, because it agreed that Murdoch’s imputations weren’t provably true. Its main defence was a new one, also introduced in 2021: “public interest”.
Public interest defence
This defence was created in an attempt to give media organisations a viable basis for defending genuine public interest reporting — basically, so they can do investigative journalism and report allegations of importance without having to prove their truth. It has long been accepted, by everyone except plaintiff defamation lawyers, that the absence of a viable non-truth defence for Australian media has had a major chilling effect and made us the defamation capital of the democratic world.
A defendant relying on the public interest defence has to prove three things: its publication was a matter of public interest; the publisher believed publishing was in the public interest; and that this belief was reasonable.
Murdoch ultimately conceded that the original publication of Crikey’s article concerned a matter of public interest (after initially denying it), but he argued that Crikey didn’t believe it was acting in that interest. Instead, he claimed, he had been the victim of a concocted plan to use the dispute between him and Crikey for the purpose of getting attention and gaining new subscribers. Basically, a cynical marketing campaign — nothing to do with any genuine public interest.
Crikey pleaded other defences too, but the public interest battle was going to be the defining one, and this was set to be the first test case for the new defence. A lawyers’ picnic, in the sense that we were all quite excited about finding out how (and if) the defence was going to work in practice.
Strike out
Murdoch’s lawyers decided to test it out early, filing an application with the court to “strike out” Crikey’s public interest defence altogether. This was contested in October 2022, and the judge (Justice Michael Wigney) delivered his decision quickly.
Justice Wigney dismissed the strike-out attempt, calling the submissions made by Murdoch’s counsel “rather high, wide and handsome”. Murdoch had contended that the public interest defence was a dud, doomed to offer no more help to media publishers than the already existing “qualified privilege” defence, which doesn’t work at all. The media, his barrister said, had been “sold a pup”.
The judge disagreed, setting out his preliminary analysis of the new defence to explain why it didn’t look like a pup to him, and ultimately concluding that Crikey’s attempt to rely on it was to be fully explored in the context of a final trial. That circus had been scheduled for the earliest feasible date: late March 2023.
The October hearing highlighted, incidentally, an oddity in the way the two parties were approaching the case. Crikey in its defence had set out a number of factual allegations by way of background, including that Donald Trump had lost the 2020 US presidential election. Justice Wigney commented that this “would plainly be regarded — at least by most rational people — to be incontrovertible”.
The odd thing was that Murdoch didn’t admit it. In his reply, a pleading that the applicant files in answer to the respondents’ defence, he had not directly admitted nor denied Crikey’s background factual allegations, including the one about who won the election. Under the court rules, this meant that he was putting the allegations “in issue”, forcing Crikey to prove them — effectively, he was denying them.
Be that as it may, the parties got on with preparing their cases — witness statements and discovery, mainly — but the litigation was heading for a major and unexpected twist.
Next: how the Murdoch team’s mistake led to a major amendation to the case.
