The writer is a retired, or close to retired, barrister who practiced in the area of defamation. He asks: are we to sit back and expect to be entertained for the next one to two years whilst the Federal Court discharges its duty to these litigants? Subject to the qualifications below, he thinks that it is unlikely.
It is necessary to state the essential case to be considered. Lachlan Murdoch asserts that Crikey published a comment piece by which it was asserted that he, Murdoch, illegally conspired with Donald Trump to overturn the 2020 US presidential election and to even incite a mob to march on the Capitol to facilitate that result.
This article must be seen immediately to have its limits. The writer does not know all the facts and is not privy to the correspondence that has preceded action. The potential scope of the litigation is enormous. It is not possible to do more than hint at outcomes.
The first question is whether Crikey did so publish commentary having that assertion or meaning. If what is alleged was published, which from what the writer understands seems highly likely, it could hardly be said that that is not defamatory. But then one moves on to the potential defences.
Truth is a defence in our, Australian, law but it is hard to imagine Crikey taking on the task of so proving the allegation on the balance of probabilities. The writer does not believe that that fact, Lachlan Murdoch’s involvement, is before the House Committee investigating the 6th January events.
Some commentators have raised the prospect of Murdoch having to make discovery of documents going to the issue. But such an obligation would only arise if truth was pleaded – as I say, most doubtful.
And so what other defences exist? The next most obvious is the defence of qualified privilege, essentially, that Crikey published out of a duty as a journalist organisation, to inform the general public, which has an interest to receive the material. It is essentially a public interest defence, which defence has developed from a recognition of an implied freedom deriving from Australia’s constitution, that such a duty, to publish, arises in respect of government and political matters, so that the electorate is informed: Lange v ABC (1997) High Court of Australia. The writer understands that the proceedings have been issued out of the Sydney Registry of the Federal Court, relying, at least in part, on publications within NSW. The NSW Defamation Act, which will necessarily apply, has recently been amended to articulate this public interest defence, in statutory terms.
The publication must be reasonable, and on that issue, the fact that media organisations in the US have made the same assertion would seem to assist Crikey. “Sources of the information” is one of a number of factors in determining the publisher’s reasonableness of belief that publication was in the public interest. Another factor is whether a response was sought from Fox News (the Murdochs) before publication? Even if not, this defence of public interest would seem a difficult one for Murdoch to overcome.
One commentator has suggested that publication by the New York Times and Washington Post means that Murdoch would not have suffered any additional damage by publication in Australia. That, however, is unlikely to be accepted in Australia. At common law the fact that others have published the same defamation is not relevant. Nor is the fact that Murdoch has chosen not to sue in the US. In that country a defence exists when the person defamed is a public figure, which, in the case of Lachlan Murdoch, can hardly be denied. The US defence derives from the First Amendment to the US Constitution – the right to freedom of speech.
The writer, for one, is quite happy that Australian law is different from US law on this issue. And if it is different, Lachlan Murdoch is entitled, as any other person defamed in Australia, to full access to Australian law.
Are there any other defences? Can’t see them – honest opinion doesn’t appear to arise as Crikey is not said to have laid out the facts upon which any such opinion is based – ‘proper material’.
Has the ‘serious harm’ threshold been established? This defence is designed to weed out trivial claims. The writer believes that it clearly has been established. Lachlan Murdoch’s reputation must surely have suffered by publication of this damning allegation to the whole Australian public.
What is interesting in this case is the commentary to the effect of a multi-billionaire, Murdoch, ‘coming the heavy’ on a modestly resourced Australian media entity. No doubt that is fair comment, however, the person or entity making that comment must accept the other side to it. What of the private Australian citizen who is not wealthy, whose reputation is damaged by a media entity in Australia, such as The Australian, the Fairfax press, an e-magazine such as Crikey, or internet service providers operating in Australia? How does that citizen contemplate litigation where he or she is totally exposed to the costs associated with litigation and deep pocketing by a well-heeled opponent as well?
Defamation law in Australia should not be available to only such litigants as Lachlan Murdoch, Rebel Wilson, Craig McLachlan and others in the elite. Certainly, it should be available to them, but justice must be made accessible to all.
This is an issue which hopefully will be addressed by the current Parliamentary review of defamation law in this country.
So, what is the upshot of all that? Crikey will in all likelihood prevail with its defence of public interest.
Paul Heywood-Smith is an Adelaide KC of some 20 years. He was the initial chairperson of the Australian Friends of Palestine Association, an incorporated association registered in South Australia in 2004. He is the author of The Case for Palestine, The Perspective of an Australian Observer published by Wakefield Press in 2014.
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