Murdoch v Crikey … Round one … Public interest defence holds up … Application to strike out the pleadings rejected … Case management … Public interest defence has legs and arms … Why do titans need to crush their critics? … Another blockbuster
Hearst’s cronies, including newspaper columnists and studio bosses, were conscripted into a campaign to destroy Welles’s career.
Louis B. Mayer attempted to buy the film in order to throw the negative into a furnace.
Hearst was a man of inherited wealth, whose national chain of raucous prints specialised in sensation, lies and smear. He told Douglas Fairbanks Jr. that he liked newspapers “because you can crush a man with journalism …”
Welles never recovered professionally from the denigration. Hearst’s empire today is a shadow of what it once was – empires and their great men come, and they go.
So we find the early entrails of the story of a media mogul’s obsession with controlling his history and reputation – not that we should be using the word “mogul”. Justice Michael Wigney, the Federal Court docket judge in Lachlan Murdoch v Crikey, says the word is “rather trite”, without offering us his preferred alternative.
US media observer Ken Auletta uses “titan”, but closer to the mark might be “heir … trust beneficiary … or the lad who drew the lucky straw”.
The Murdoch media business is the latter-day incarnation of Hearst. Both “titans”, with their overwhelming resources, felt compelled to crush their critics. After all, that was what defamation law was designed to do, to give the “nobs” the legal right to destroy pipsqueaks who were spreading slander about them.
Scandalum magnatum took hold during the reign of Richard II, and was an important legal leg-up for magnates with thin skins.
Despite Wigney’s studied air of distain in the first case management judgment, he does come out largely in favour of the defence Crikey has pleaded – at this stage. He slapped down Lachlan’s try-ons and clarified uncertain aspects of the law.
Murdoch and his brief wanted slabs of Crikey’s unamended pleadings struck out, saying they are “embarrassing” and don’t assist the case for the yet untested public interest defence.
Murdoch argued that the media had been “sold a pup” with this new provision, there’s “not much to see here”, basically it’s a pile of rubbish and no different from the useless existing statutory defence of qualified privilege.
The lawyers and scribblers at News Corp headquarters must have been scratching their noggins. Hadn’t they been arguing in favour of including this defence in the latest round of defamation law reforms, in an attempt to mitigate the plaintiff free kicks that are regularly awarded, specially by the Federal Court?
The defence claimed that Fox News’ hosts and guests repeatedly cast doubts on the 2020 presidential vote, asserting that President Biden had not been legitimately elected.
Further details were provided, including quotes from the Fox News stars which directly alleged voter fraud, without a scintilla of truth.
Justice Wigney, sounding like a Victorian judge who hadn’t heard of an “off the peg suit” described these hosts as “someone named Tucker Carlson … someone named Jeanine Pirro … someone named Sean Hannity”.
Clearly, none of the fabulous Fox programming reaches the Wigney household.
Murdoch argued these quotes by his star presenters, some of who are close friends, are irrelevant to the public interest defence, and anyway it would involve too much time and delay for the court to go through screeds of Fox News footage.
It could also be added that it was likely to do everyone’s head in.
Wigney characterised some of the the submissions on behalf of Murdoch as “rather high, wide and handsome”.
Oddly, the mogul-heir conceded in oral submissions that the Crikey article did indeed concern issues of public interest, yet in his written reply to the defence he denies this.
The confusion didn’t end there. Murdoch argued that the defence relating to publications concerning political or governmental affairs (the Lange defence) should also be struck out, because whatever Fox News hosts and guests said about the presidential election could have no relevance to Australia.
Wigney thought otherwise.
“It is by no means certain that the Lange defence is strictly limited to the discussion of government or political matters directly relating to Australia.”
After all, the outcome of US elections and the democratic process in that country has a bearing on the politics and government in this country.
Wigney also dismissed Murdoch’s claim that Crikey’s pleadings were evasive or ambiguous, or likely to cause prejudice, embarrassment or delay. The pleadings showed there is a reasonable public interest defence, nonetheless their clarity could be improved.
Importantly, the judge made short work of the idea that the public interest and statutory qualified privilege defences were one and the same thing.
“Why retain both defences if they are effectively the same?”
Murdoch’s reliance on authorities concerning the construction of the qualified privilege defence was “somewhat misplaced and misconceived”.
The new public interest defence focuses on the journalist’s reasonable belief that the matter is in the public interest, which entails an examination of the reporter’s state of mind – along with considerations about content, the seriousness of the defamation, the information possessed by journalists and their sources and steps taken to verify it.
There are objective and subjective elements and plenty of trip wires to be sure, but it’s good to know that at this stage, despite strenuous objections, the defence has sufficient legs to go to trial.
Another important goal for Crikey was the finding by the judge that the reference in the legislation to “defamatory matter” is a reference to the article as a whole and not just the defamatory meanings, as contended by Murdoch.
Even better, Murdoch’s argument to confine the determination of what is in the public interest was unacceptable.
The public interest can be determined by surrounding facts beyond the content of the article itself. So it was that the key elements of Crikey’s pleadings about the outcome of the 2020 presidential election and surrounding events withstood the strike out application.
Murdoch’s brief had contended that Crikey’s pleadings were a “furphy”. It was suggested that furphy was an Irish word, perhaps because it rhymed with “Murphy”.
Wigney took the trouble to set us straight, assuming we needed to be set straight:
“The word ‘furphy’ is, however (at least according to that reputable source, Wikipedia), Australian slang for an erroneous or improbable story that is claimed to be factual.
It is said to derive from water carts, made by J. Furphy & Sons of Shepparton, Victoria, that were used to cart water to Australian troops during the Second World War.
Apparently, the diggers would congregate around the carts and exchange rumour and gossip. Whatever may be the origins of the word, for the reasons I have already given, I am unpersuaded that Crikey’s public interest defence, or any part of it, should be struck out on the basis that it is, or raises, a furphy. That is ultimately one of the matters that must be determined at trial.
The state of American democracy and the Murdoch’s role in damaging it via Fox News can now be played out in an Australian court.
Murdoch v Private Media Pty Ltd