Lachlan Murdoch, unlike his father Rupert, is thin-skinned enough to react to Crikey’s barbs. Rupert Murdoch has never sued for defamation. This is the third time in two years his eldest son has threatened Crikey with legal action.
A dispute that could damage Murdoch and destroy Crikey is now headed towards a place no publishing company or media mogul should want to be: defamation proceedings in the Federal Court before a judge likely to be cranky at having to deal with a case that could have been sorted out behind closed doors.
Murdoch has briefed Sue Chrysanthou, SC, an elbows-out defamation barrister who helped actor Geoffrey Rush extract a record, $2.9 million damages payment out of Murdoch’s Australian publishing house, News Corp.
The legal line-up at Crikey is more surprising. MinterEllison partner Peter Bartlett, a media law expert who has provided Crikey legal advice for 17 years and helped quietly resolve its previous disputes with Murdoch, is sitting this one out. Instead, Crikey’s legal team is being led by Marque Lawyers managing partner Michael Bradley.
On the Marque website, Bradley notes his “well-deserved reputation as a shameless self-promoter”.
Ultimately, the people who have most to lose in this aren’t Beecher, the chairman and largest shareholder of Private Media, or his high-profile investors like John B. Fairfax. Rather, it is 40-odd journalists at Crikey who could lose their jobs if the cost of litigation forces their employer to the wall.
A quick recap on how we got here. On June 29, Crikey published a piece by political correspondent Bernard Keane about the latest, damning evidence against Donald Trump from the House select committee hearings into the January 6 storming of the US Capitol Building.
The bulk of the story did not mention the Murdoch family or their media interests but, after a somewhat confused analogy with the Watergate scandal, concluded with Keane’s non-sequitur observation: “The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.”
This final line prompted Crikey to headline the piece: “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator.”
The day after the story was published, Lachlan Murdoch’s solicitor John Churchill sent a concerns notice – defamation lingo for a threatening lawyer’s letter – to Crikey. The notice claimed the article implied that Lachlan Murdoch had conspired with Trump to overturn the 2020 election result, incite a “mob with murderous intent” and commit treason.
Crikey denies this is what the story conveyed to the ordinary, reasonable reader and says Murdoch’s imputations are “contrived”. If a judge sides with Crikey on this point, Murdoch’s claims will fall at the first hurdle. Crikey also says Murdoch’s claim will not pass the Serious Harm Test since similar accusations have been made against Murdoch in much larger mainstream media outlets for the past year.
Within 20 minutes of receiving the letter back in June, Crikey took the story down. Yet, this time, Beecher and co were not willing to meet Murdoch’s settlement terms. Instead, they publicly called his bluff.
In a move that gained international attention but will almost certainly expose Private Media to aggravated damages if it loses this case, it this week republished Keane’s article, published legal correspondence between the two parties and took out an ad in The New York Times daring Murdoch to sue.
In the short term, Crikey will commercially benefit from this gambit. It is part of Crikey folklore that when word got out broadcaster Steve Price had taken out an injunction on the proceeds from Stephen Mayne’s house sale in the middle of a defamation dispute in 2002, Crikey’s monthly revenues tripled from the resultant boost in subscriptions.
That episode cost Mayne nearly $100,000, but commercially it was the making of Crikey, which Mayne sold two years later for $1 million to Beecher’s Private Media.
Crikey is now part of a $20 million publishing company. Its strategy to monetise its latest legal stoush with Murdoch is clear. So are the risks.
Crikey is not defending important, investigative journalism nor even, especially good journalism. The offending story by Keane was an opinion piece which offered no unique insights.
It didn’t elicit any new facts about the capitol riots, Trump’s complicity, or the role played by Fox News commentators like Tucker Carlson in stoking anger and resentment among Trump supporters. Its only distinguishing feature was the choice of words used to tie in the Murdochs.
Contrast this with the journalism that Nine spent 110 days of hearings defending in Federal Court in the Ben Roberts-Smith case; diligent, fact-based reporting about whether Australia’s most decorated soldier committed war crimes in Afghanistan. The costs associated with this case, which is awaiting judgment, are conservatively estimated at$25 million.
That’s enough to buy Beecher’s entire media empire.