Media mogul Lachlan Murdoch was culpable for the violent insurrection of the US Capitol after the 2020 presidential election because of lies told through Fox News, a judge has heard.
In the Federal Court on Tuesday, barrister Michael Hodge KC said that while many media sources fuelled a conspiracy theory that Joe Biden stole the election from Donald Trump, Mr Murdoch could still be held responsible.
"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.
"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 representing Private Media, which publishes Crikey, as well as political editor Bernard Keane, editor-in-chief Peter Fray, chairman Eric Beecher and CEO Will Hayward.
They are seeking additional time to file their defences to Mr Murdoch's defamation suit over an opinion piece published in June last year and reposted in August referring to him as an "unindicted co-conspirator" with Trump over the false election claims.
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 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.
Lachlan Murdoch, in the defamation case against Crikey, claims the articles conveyed a meaning that he illegally conspired with 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 Biden won the election and had disagreed with 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," the barrister 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.
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.
