Will Lachlan Murdoch beat Crikey in court?

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##RUBY:
From Schwartz Media, I’m Ruby Jones, this is *7am*.

Rupert Murdoch’s son and the co-chair of News Corp, Lachlan Murdoch, is suing a small independent publisher in Australia over an article it published on its website.

The defamation suit, filed against Crikey a couple of weeks ago, could test Australia’s new public interest laws.

Crikey say they want to defend it, and force Lachlan Murdoch to prove his claims in court. But, the stakes couldn't be higher for the media company, which stands to lose three million dollars. 

Today, journalist and author, Paddy Manning, on the likely successor to News Corp’s global empire vs Crikey.

It’s Thursday, September 8.

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##RUBY:
Paddy, Lachlan Murdoch is suing this small Australian news website Crikey over an article that referred to his family as unindicted co-conspirators in the January 6 storming of the Capitol – something his lawyers say is defamatory. But you’ve been speaking to the Editor in Chief of Crikey, Peter Fray, haven’t you – and it’s not the first time Fray and Lachlan Murdoch have crossed paths is it?

##PADDY:
Well, just to introduce Peter Fray, he's a veteran Australian journalist, long time Fairfax reporter and editor. He was editor in chief of the Sydney Morning Herald and and I worked for him in fact, and he was also deputy editor of The Australian before he went on to become now the editor in chief of Crikey. But Peter Fray's first encounter was actually back in 1999 with Lachlan. 

##Archival tape -- Peter Fray:
“...this is a somewhat silly anecdote, but nonetheless, in the 1990s probably, I don’t know around ‘96, ‘97, I was having dinner with my wife.”

##PADDY:
He was a reporter then at the Sydney Morning Herald and he was at Salt, a restaurant in Darlinghurst in Sydney, to celebrate his then wife's birthday. The couple had settled at a table when an out-of-control car..

##Archival tape -- Peter Fray:
“crashed into a bunch of other cars and kind of somersaulted down the road. And it was so spectacular, everyone. Oh, you know. Wow.”

##PADDY:
Two men at the table in the front window immediately rushed to pull the driver from the wreckage and Fray recognised them. 

##Archival tape -- Peter Fray:
“The couple in the front window jumped out of the seats and ran down and saved the driver from this almost burning vehicle. And the couple I'm talking about was none other than Lachlan Murdoch and Baz Luhrmann.”

##PADDY:
Lachlan Murdoch, who was out in Sydney in 1999 working for News Corporation at the Australian headquarters in Surry Hills in Holt Street. And this was his first kind of stint working for his father, Rupert, where he was kind of learning the ropes on the print side of the business, and he was a handsome man about town at one point Australia's most eligible bachelor. But by now he was engaged to his wife, Sarah Murdoch, the supermodel, and he was out having dinner with the film director, Baz Luhrmann, who was a great friend and a near neighbour. 

Well, Fray as the young reporter he was…

##Archival tape -- Peter Fray:
“And I grabbed my notebook and I ran after them and said, ‘Wow, that's incredible, Mr Murdoch. You know, you just saved someone's life.’ And he was all very modest and, you know, wonderful about it.”

##PADDY:
And Lachlan, not yet 30, was all very modest, as Fray remembers, and he said wonderful about it. 

##Archival tape -- Peter Fray:
“I remember filing a story which portrayed Lachlan Murdoch as the hero of the night, probably in the second or third edition of the Herald that night. That day.”

##PADDY:
Fray told me he thought at that point in time that Lachlan Murdoch was really cool. And then he added…

##Archival tape -- Peter Fray:
“Ah, I don't think he is so cool now, but I thought then he was really cool.”

##RUBY:
Okay, so it sounds like once upon a time, Peter Fray did have some admiration for Lachlan Murdoch, but things appear to be a bit different today. The website that Peter Fray is now the editor-in-chief of recently published this article calling the Murdochs the “unindicted co-conspirators in the storming of the Capitol.” So, two decades on from that car accident, how did Lachlan Murdoch initially respond to Crikey’s piece? 

##PADDY:
Well, at first there's a bit of back and forth in private correspondence between Lachlan, his lawyers and private media. So Lachlan Murdoch issues a concerns notice and in this concerns notice, Murdoch listed the defamatory imputations, including that he had illegally conspired or knowingly entered into a criminal conspiracy with Donald Trump to overturn the 2020 presidential election, to incite an armed mob to march on the capital or commit the offence of treason against or being a traitor to the United States. So there’s extremely serious alleged defamatory imputations. Crikey pulled the article down and a legal to and fro ensued in which Murdoch and private media tried to negotiate an apology and settle the dispute. In late July, Crikey proposed to issue a statement denying that the article was defamatory, but saying there's no evidence Mr. Murdoch was involved. But that, quote, “Crikey does believe Mr. Murdoch bears some responsibility for the events of January six 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 his offer and reiterated his request for an apology, and things deteriorated from there. 

##RUBY:
Okay. How so? What happened next Paddy?

##PADDY:
On August 14th, 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. And that's when the lawsuit kicked off. 
Lachlan Murdoch's 40 page writ filed in Sydney on August 23rd, lays out 14 alleged defamatory imputations against the Fox Corporation chief executive contained in the Crikey article. It's set to begin before Justice Michael Wigney in the Federal Court with the first case management hearing on September 23rd. And the outcome could have huge implications not only for Lachlan Murdoch and Peter Fray, but also for the way that defamation law works in Australia. 

##RUBY:
We'll be back in a moment. 

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##Archival tape -- ABC:
“Media boss Lachlan Murdoch has launched defamation proceedings against the publishers of news website Crikey.”

##Archival tape -- NPR:
“'Go ahead and sue us.' That's the defiant message from a small Australian news site called Crikey over threats of a defamation lawsuit from Fox Corp CEO Lachlan Murdoch.”

##Archival tape -- 7NEWS:
“NewsCorp co-chairman Lachlan Murdoch is now suing the Australian publisher of news website Crikey over an article which named his family as an unindicted co-conspirator of the deadly US Capitol riots.”

##RUBY:
So Paddy, we've been talking about the upcoming defamation case between Lachlan Murdoch and Private Media who publishes Crikey. It's expected to all begin in court later this month. So what do we know about what's actually going to happen in that courtroom?

##PADDY:
Well Ruby, the game changer here is a new provision in the defamation laws around public interest. It was introduced last year as part of national reforms which have been legislated now in all states except for Western Australia and also in the Northern Territory. In New South Wales, the key provision is section 29a of the Defamation Act 2005, which provides, quote, “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.” The question of public interest is important here, so I spoke to Associate Professor Jason Boswell and Director of the Centre for Media and Communications Law at the University of Melbourne. He told me the role a news organisation such as Fox News played in the January six insurrection is definitely in the public interest. But, quote, “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 will play out. That's what he said to me

##RUBY:
Okay. So it's going to be interesting then to see how that plays out when this provision is tested, because I guess we'll discover whether or not that new public interest defence is enough to protect what Crikey published. But what do we know about how Murdoch might try and argue that this article did defame him? 

##PADDY:
Well, I sat down and read the statement of claim from Lachlan Murdoch, of course, and some of the language that struck me as extremely significant was that it might come down to the idea of malice. If you publish something with malice, you may not be found to have published it in the public interest. And as the statement of claim itself reads, “malice is inimical to the public interest.” And I think that's what the Murdochs will be fighting to establish here. 

I spoke to Paul Svilans, a partner at defamation specialist Mark O'Brien Legal, and he pointed out that one of the factors the court will take into account is whether, quote, “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 intend to publish. Nor have they offered him the opportunity to respond, including in the article in question, in which Murdoch claims the accusations against him were, quote, “asserted as fact.” 

Murdoch also claims that because private media posted the articles free outside its paywall and alongside an offer of discounted subscriptions, its, quote, “primary aim was to increase their subscriptions for financial gain.” No spokesperson for Murdoch would comment on the case to me, but my understanding is that in the Murdoch camp, Crikey’s actions are perceived as being an abuse of free speech. And 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 in the past five years, and they also say that they've raised concerns on only three previous occasions. Two were resolved with an apology and one with a correction. 

##RUBY:
Right. Okay. So the Murdoch line of argument will likely try to establish that the allegation was published with malice or in bad faith and for financial gain for Crikey to get more subscribers. So what defences does Crikey have to those lines of argument. 

##PADDY:
Well that's the big unknown at this point. So, we've really kind of only got one side of the story legally. Private Media is yet to file its defence, it’s due in late September, and Peter Fray told me he was not going to countenance the legal arguments in the media. When I spoke to him, he said he totally disagrees that Crikey has engaged in an abuse of free speech and he also disagrees that they're engaged in some sort of subscription drive. For the record, he also denies that either he or Crikey have any malice towards Lachlan Murdoch, quote, “at all.”

##RUBY:
Okay. And so what is at stake here for Crikey, or I suppose more accurately, for the company that owns Crikey, for Private Media? 

##PADDY:
Well, the stakes couldn't be higher, Ruby, because they're up against the billionaire. And as Malcolm Turnbull pointed out, Lachlan Murdoch owns boats that are worth more than Crikey. So Private Media is operating on a worst case scenario, according to Fray, that it could be found liable for costs and damages of some $3 million. 

But we've recently seen cases where the costs in defamation have gone well above that. In the recent Ben Roberts-Smith case, for example, costs were estimated at $25 million. And some estimates say that it's actually more like $35 million. So Crikey now has launched a fighting fund and within days raised more than $450,000, including $5,000 donations from former Prime Ministers Kevin Rudd and Malcolm Turnbull. Fray denies that the case could bankrupt Crikey or its publisher. 

##Archival tape -- Peter Fray:
“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 have, 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 in this, 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.”

##PADDY:
At the end of the day, Fray said it's going to be about freedom of speech. He told me, quote, “the bedrock of this is freedom of speech and we should have the right to have this robust debate.” 

##RUBY:
Well, the debate's going to happen in court now, either way. And I'm sure it's going to be very interesting to see how it all plays out.

##PADDY:
Very true, Ruby. 

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##RUBY:
Also in the news today... 

Anthony Albanese has called on the Coalition frontbenchers Alan Tudge and Michaelia Cash to explain the circumstances leading to their former staffer Rachelle Miller receiving a $650,000 payment funded by taxpayers.

Tudge and Cash have denied any wrongdoing.

And... 

A new defense cooperation agreement has been signed between Australia and Timor Leste.

The agreement will allow both parties to increase defense and security cooperation in maritime operations, and cooperate on humanitarian assistance and disaster relief. 

I’m Ruby Jones, this is *7am*. See you tomorrow.

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