A defamation battle between media mogul Lachlan Murdoch and the publisher of Crikey is being driven by “ego and hubris and ideology” and may be sent back to mediation, a judge has complained.
Mr Murdoch is suing Crikey owner Private Media and senior figures over an opinion piece published in June last year, which labelled him an “unindicted co-conspirator” in the Capitol Hill riot in 2020.
Private Media is seeking additional time to file its defences.
Representing Private Media, barrister Michael Hodge KC on Tuesday said Mr Murdoch was culpable for the violent insurrection because of lies told through Fox News.
“He controls Fox Corporation. He permitted for the commercial and financial benefit of Fox Corporation this lie to be broadcast in the United States,” he told Justice Michael Wigney in the Federal Court.
“We say that gives rise to culpability where you are allowing and promoting this lie and that lie is the motivation for the insurrection.”
Mr Hodge is also representing Crikey‘s political editor Bernard Keane, editor-in-chief Peter Fray, chairman Eric Beecher and CEO Will Hayward.
The publisher is seeking to add a contextual truth defence on top of its already pleaded defences of public interest and qualified privilege.
The proposed defence, yet to be approved by the Federal Court, includes personal communications between the Murdoch family revealed via separate US defamation proceedings brought against Fox by voting equipment company Dominion which claims it was falsely accused of conducting mass voter fraud.
In one SMS, Rupert Murdoch tells his son Lachlan and Fox board member Paul Ryan about Mr Trump’s “conspiracy nonsense” and refers to Fox talk show host Sean Hannity.
“Wake up call for Hannity who has been privately disgusted by Trump for weeks but has been scared to lose viewers,” Rupert Murdoch wrote.
Justice Wigney is deciding whether Private Media’s defence will be allowed in the case, which is due to go to trial in October.
“I say this with the greatest respect. There does seem to be a hint that this case is being driven more by ego and hubris and ideology than anything else,” Justice Wigney said.
“I’m seriously giving consideration to referring it to mediation again. It seems to me to be a useful course.”
Lachlan Murdoch, in the defamation case against Crikey, claims the articles conveyed a meaning that he illegally conspired with Mr Trump to “incite a mob with murderous intent to march on the Capitol” in Washington DC on January 6, 2021.
Mr Murdoch’s barrister Sue Chrysanthou SC called the proposed contextual truth defence vague, saying it did not say how her client was culpable for the state of mind of about 2000 people who stormed the Capitol building on January 6.
Other Murdoch-owned publications, including the Wall Street Journal, New York Post and even Fox itself had reported that Democrat Joe Biden won the US presidential election and had disagreed with Mr Trump’s claims.
“This defence is not rational, it is not arguable, it’s a waste of everyone’s time and it serves no legitimate end in the litigation,” Ms Chrysanthou said.
She accused Crikey of including masses of material from the Dominion case in the Australian defamation lawsuit purely as part of its “Lachlan Murdoch campaign”.
The media executive has previously alleged that Crikey has run this campaign against him to boost subscribers and gain financially.
“They are happy to martyr themselves in this litigation to seek more money on the GoFundMe me campaign … to turn the case into something that resembles an inquiry and they don’t care if they win or lose,” Ms Chrysanthou said of Lachlan Murdoch.
She urged the judge to reject the defence, saying it would mean a three-week trial scheduled to begin October 9 would have to be vacated.
Justice Wigney will deliver his judgment on Tuesday afternoon.
