Lawyers representing Lachlan Murdoch in his defamation case against Crikey assert Australia’s new public interest defence will not help the online publisher fend off the media mogul’s claim.
“The new dawn promised to the media by reason of this defence is not going to happen,” Sue Chrysanthou SC said.
The media had been “sold a pup”, she added.
Rather than the topic of Crikey’s article, a reasonable belief needed to be shown that the defamatory matter at the time of publication was in the public interest, Ms Chrysanthou argued in the Federal Court on Monday.
Mr Murdoch, son of Rupert Murdoch, co-chair of News Corp and chief executive of Fox Corporation is suing Crikey over a June 29 opinion piece by political editor Bernard Keane, that was taken down and then posted back online on August 15.
The article related to US House of Representative hearings into former president Donald Trump and the January 6, 2021 Capitol riots in Washington, DC.
Mr Murdoch alleges it contained defamatory meanings, including a false claim he entered an illegal criminal conspiracy with Mr Trump to overturn the US 2020 presidential election and incite a mob with murderous intent to march on the Capitol.
The article was titled Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator.
“We are saying there was no matter of public interest that connected my client to that evidence [from the hearings],” Ms Chrysanthou told Justice Michael Wigney in a case management hearing.
The only co-conspirators identified were “persons with my client’s surname” and Fox News commentators.
In the final paragraph Keane “out of nowhere” compared her client with Richard Nixon, an unindicted co-conspirator in the Watergate controversy.
The article was about a criminal who had committed an indictable offence and got away with it, Ms Chrysanthou argued.
Mr Murdoch also claims Crikey‘s publisher Private Media, Keane and editor-in-chief Peter Fray were motivated by malice, predominantly acting to harm Mr Murdoch.
Private Media has applied to have that claim struck out.
Private Media denied the article defamed Mr Murdoch as alleged and will argue it didn’t cause serious harm to him.
The independent outlet’s defence also includes implied freedom of political communication and failure to accept reasonable offer of amends.
The defence also states it believed the references to the Murdochs were “self-evidently hyperbolic” and “no one would read the words literally as suggesting that the Murdochs were guilty of criminal conspiracy”.
In a statement in August, Private Media CEO Will Hayward said Crikey stands by its article.
‘‘We look forward to defending our independent public interest journalism in court,’’ Mr Hayward wrote.
‘‘We are determined to fight for the integrity and importance of diverse independent media in Australian democracy.’’
In a highly unusual step, Crikey earlier took out an advert in The New York Times calling on the US-based Mr Murdoch to make good his legal threats.
A nine-day trial is due to start on March 27.