Crikey lawsuit ‘I thought that Lachlan Murdoch was really cool’
As Private Media prepares to defend Lachlan Murdoch’s defamation case, legal experts warn the publisher is at real risk of losing. Total costs could reach $3 million.
In 1999, Peter Fray was at Salt, a restaurant in Darlinghurst, to celebrate his wife’s birthday. The couple had settled at a table when an out-of-control car came somersaulting down the road in front of them and smashed into a Rolls-royce parked outside. Two men at the table in the front window immediately rushed to pull people from the wreckage.
Fray recognised them as media heir Lachlan Murdoch and the film director Baz Luhrmann.
“I grabbed my notebook and I ran out after them,” says Fray, who was then a reporter at The Sydney Morning Herald. “And said, ‘Wow, that’s incredible, Mr Murdoch. You just saved someone’s life!’ And he was all very modest and, you know, wonderful about it.”
Fray filed a story for the late edition of the Herald, portraying the Murdoch heir as hero of the night. He reported that Murdoch and Luhrmann had run towards the upturned car, the driver and passenger of which they “dragged from the vehicle as petrol poured from a ruptured tank”. A witness was quoted saying: “We didn’t know what had happened until we got outside and saw Lachlan and Luhrmann pull the driver out of the vehicle. Then Lachlan pulled the other guy out … he did most of it.”
The piece was brief and gossipy and admiring. “I thought at that point in time that Lachlan Murdoch was really cool,” Fray says. “I don’t think he’s so cool now.”
Two decades later, Murdoch and Fray are involved in another spectacular collision, this time between two opposing legal arguments about the nature of free speech in Australia, the defamation capital of the world. In a case that has already drawn global attention, Murdoch has personally sued Private Media, publisher of the independent website Crikey, Fray as Crikey’s editor-inchief, and political editor Bernard Keane.
The suit concerns the publication and subsequent republication of an article that described the Murdochs as “unindicted co-conspirators” with former United States president Donald Trump in the storming of the Capitol on January 6, 2021.
Both sides are gearing up for an expensive fight in the Federal Court, which looms as the first big test of the new “public interest” defence provision of national defamation laws that were overhauled last year and apply everywhere except Western Australia and the Northern Territory.
According to a number of defamation law experts, it is a fight Murdoch has every chance of winning. Michael Douglas, of the University of Western Australia’s law school, told the ABC last week that Crikey was “playing with fire”.
“The fact that Crikey has in some ways agitated for a defamation fight probably won’t help its case. Among other things, in doing so it meant that more people read the underlying article, and the more people that read a defamatory article, the more harm is suffered by the person who sues,” he said.
Lachlan Murdoch’s 40-page writ, filed in Sydney on August 23, lays out 14 alleged defamatory imputations against the Fox Corporation chief executive contained in the Crikey article, which was originally published on June 29. The piece followed explosive testimony given by former White House aide Cassidy Hutchinson to the US congressional committee investigating the January 6 insurrection, revealing Trump wanted the Secret Service to remove magnetometers preventing armed supporters from joining the march on the Capitol – and indeed wanted to march himself.
Keane’s article, which focused on the January 6 committee hearing, did not refer to Lachlan Murdoch personally but concluded with this paragraph: “If Trump ends up in the dock for a variety of crimes committed as president, as he should be, not all his coconspirators will be there with him. Nixon was famously the ‘unindicted co-conspirator’ in Watergate. The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.” The article carried the headline “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator”.
Murdoch immediately issued a concerns notice, kicking off a mandatory
“offer of amends” process as required under defamation law, listing the alleged defamatory imputations, including that he had illegally conspired or knowingly entered into a criminal conspiracy with Trump to overturn the 2020 presidential election, incite an armed mob to march on the Capitol, or commit the offence of treason against or being a traitor to the United States, and should be indicted. Murdoch’s subsequent writ claims “no other story has accused Murdoch of indictable offences in connection with January 6, specifically treason and traitorous conspiracies”.
Crikey pulled down the article and a legal back-and-forth ensued in which Murdoch and Private Media tried to negotiate an apology and settlement. In late July,
Private Media sent an offer letter marked
“not without prejudice”, meaning it could be used in subsequent legal proceedings, which proposed Crikey issue a statement denying that the article conveyed the defamatory imputations, while acknowledging: “There is no evidence that Mr Murdoch did any of the things described above. Crikey does not say that he did any of them. Crikey does believe that Mr Murdoch bears some responsibility for the events of January 6 because of the actions of Fox News, the network he leads. However, Crikey does not believe that he was actively involved in the events of that day as the things described above would suggest.”
Murdoch rejected Crikey’s offer and reiterated his request for an apology. Things deteriorated from there. On August 14, the Herald published an article in which
Fray was quoted saying, “Crikey and its publisher Private Media are sick of being intimidated by Lachlan Murdoch.” Within days, the original article and all the legal correspondence had been posted online, along with open letter advertisements run in The Canberra Times and The New York Times, generating publicity for the dispute, along with an ongoing series of articles.
Private Media’s shift in legal strategy – from attempting to settle the dispute to bringing on the fight – coincided with a switch in the publisher’s legal advisers from long-time Minterellison partner Peter Bartlett to sometime Crikey contributor Michael Bradley of Marque Lawyers, a fact noted in the Murdoch pleading.
Fray explains that the switch was deliberate and was no reflection on Bartlett or his team, who continue to advise Private Media: “We came to the reasonable decision that we had to separate this from everything else we do in our business … This is a case that’s going to suck up a lot of time, a lot of energy. We want to see Lachlan Murdoch come to court. We want to see him talking about his influence over Fox. We want to see him talking about January 6. We need the full attention of a really interesting, campaigning lawyer like Michael Bradley to do that.”
Murdoch claims that because Private Media posted the articles free outside its paywall and alongside an offer of discounted subscriptions, its “primary aim was to increase their subscriptions for financial gain”. No spokesperson for Murdoch would comment on the case to The Saturday Paper.
It is understood that, in the Murdoch camp, Crikey’s actions are perceived as being an abuse of free speech; the writ says as much. Insiders are believed to have formed a view that Private Media has been trading off the Murdoch name by criticising the company so heavily. According to the statement of claim, the Murdoch name has been published on the site about 1120 times during the past five years. Concerns have been raised on three previous occasions: two were resolved with an apology and one with a correction.
Associate Professor Jason Bosland, director of the centre for media and communications law at the University of Melbourne, says the role a news organisation such as Fox News played in the January 6 insurrection is “definitely” in the public interest, but “the question will be whether or not the imputation in question is relevant to that broader public interest aspect of the article. I think that’s how it’ll play out.”
The key provision, introduced as a result of last year’s reforms, is section 29A of the
New South Wales Defamation Act 2005, which provides: “It is a defence to the publication of defamatory matter if the defendant proves that – (a) the matter concerns an issue of public interest, and (b) the defendant reasonably believed that the publication of the matter was in the public interest.”
Bosland says part (b) has both a subjective and an objective element, requiring not only that the author subjectively believed the alleged defamatory material was in the public interest but that that belief was objectively reasonable. He cautions that the provision “has never been litigated so we don’t know how it will be applied”.
Paul Svilans, a partner at defamation specialists Mark O’brien Legal, points out that, under sub-section (g) of s29a, one of the factors the court will take into account as to whether the publication was in the public interest is “whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person”.
On that score, he says, Crikey could be in trouble. Lachlan Murdoch’s correspondence with Private Media, and the statement of claim, point out that Crikey has never attempted to contact him to notify him of allegations they intended to publish. Nor have they offered him the opportunity to respond, including in the article in question, in which the accusations against him were “asserted as fact”.
“If they haven’t done that,” says Svilans, “they’re behind the eight ball straight away.”
Murdoch goes further, accusing Crikey of bad faith and claiming aggravated harm and hurt, noting that “malice is inimical to the public interest”.
Professor Bosland explains that if malice is proved in court, this could have serious legal implications for Crikey: “If you publish something with malice, you may not be found to have published it in the public interest. And I think that’s what they are trying to establish here.”
“If you publish something with malice, you may not be found to have published it in the public interest. And I think that’s what they are trying to establish here.”
Private Media is yet to file its defence, which is due in the Federal Court in late September, and Peter Fray will not go into the legal arguments. “I disagree totally that it’s an abuse of free speech,” he says. “I disagree that we’re sort of engaged in some sort of subscription drive.” For the record, he denies that either he or Crikey have any malice towards Lachlan Murdoch “at all”.
“In the end of the day, this is going to be about freedom of speech,” Fray says. “Lawyers will fight this out, but the bedrock of this is freedom of speech: it’s about the capacity of Australian readers to read essentially what anyone in the United States, for instance, could read – and some, and some. And why are we treated like some infantile version of a Western democracy? We should have the right to have this robust debate.”
Crikey has launched a fighting fund and within days raised more than $450,000, including $5000 donations from former prime ministers Kevin Rudd and Malcolm Turnbull. Private Media’s worst-case scenario is that it will be found liable for costs and damages of some $3 million, which it is hoping to crowdfund. Fray denies that the case could bankrupt Crikey or its publisher. “Absolutely not,” he says. “There is no way this case is going to sink Private Media. We have gone into this case with our eyes wide open. We have tapped into a wellspring of concern about the influence of Murdoch … We are very responsible publishers. We are not going to put Private Media, and independent media in this country, at risk over this; but we do believe that we are fighting on a matter of very important public principle. So we are not going into this with some sort of naive, you know, ‘Oh, my god, wouldn’t it be great for subscriptions if we did this?’ That is absolute bullshit.”
Recently, Prime Minister Anthony Albanese, his deputy, Richard Marles, and Foreign Affairs Minister Penny Wong met Lachlan Murdoch at News Corp’s Holt Street headquarters in Sydney’s Surry Hills. Fray worked there himself for almost two years, as deputy editor of The Australian, and says he “learnt a lot of things about how the belly of the beast works, for sure”.
Fray admits he was a “little bit surprised at Albo’s visit to Holt Street”, adding “I’d hope the prime minister of the day – and Penny Wong and Richard Marles – thought that this was a worthy point of discussion. I would have thought they would have said, ‘Hey, do you really want to do this?’ But maybe not – who knows?” Fray’s original piece on Murdoch’s car crash heroics ran on page three of the Herald. It ended with a final observation from the media heir: “Before leaving the restaurant Murdoch shrugged off suggestions that he was a hero. He had just done what he felt was the right thing, he said.”