The David and Goliath battle for reputation over culpability for the Washington riots

In a bizarre David and Goliath defamation battle, Australian website Crikey has goaded Lachlan Murdoch into suing over its suggestions the Fox news network was complicit in stoking deadly Washington protests following Donald Trump’s election defeat.   Reputationally there is much on the line for Lachlan, while Crikey is seeing the case as a marketing opportunity, ramping up a special subscription offer and launching a crowdfunding campaign for the legal costs - to two former PMs, Kevin Rudd and Malcom Turnb

In a bizarre defamation battle, Australian website Crikey has goaded Lachlan Murdoch into suing over its suggestions the Fox News network was complicit in stoking deadly Washington protests following Donald Trump’s election defeat.

Reputationally, there is much on the line for Lachlan, while Crikey is seeing the case as a marketing opportunity, ramping up a special subscription offer and launching a crowdfunding campaign for the legal costs. Two former PMs, Kevin Rudd and Malcolm Turnbull have already signed up.

For anyone facing a reputational crisis over media revelations, launching defamation action is a risky step. Cases are costly, lengthy, and enable an opponent to obtain all sorts of documents and call witnesses before an open court – where their allegations can be freely reported. They can create more damaging publicity than the original article.

Crikey’s story, an opinion piece published in June that targeted Trump and his media supporters over the Capitol riots, didn’t mention Lachlan. It did include a questionable throwaway line that “the Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis”. The headline: “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator.”

Lachlan Murdoch – News Corp co-chairman and Fox Corporation chief executive, with his father in semi-retirement – threatened to sue. Then Crikey pulled the story offline. But a couple of weeks later the outlet had a change of heart, stating in an introduction: “We have chosen to republish it as part of a series about this legal threat and about how media power works in Australia. For the series introduction go here, and for the full series go here.”

Keen for its day in court, Crikey published all correspondence with Murdoch’s lawyers and took out a large ad in the New York Times, with an open letter challenging Murdoch to sue. “We await your writ so that we can test this important issue of freedom of public interest journalism in a courtroom,” read the letter, signed by Eric Beecher, chairman of publisher, Private Media, and Crikey editor-in-chief, Peter Fray.

Lachlan took the bait, issuing a writ claiming Crikey implied he “illegally conspired with Donald Trump to incite an armed mob to march on the Capitol to physically prevent confirmation of the outcome of the 2020 presidential election” and “knowingly entered into a criminal conspiracy with Donald Trump and a large number of Fox News commentators to overturn the 2020 election result”.

Already, Lachlan appears thin-skinned. It’s never a good look for a media owner to be resorting to defamation action, especially when their publications energetically denigrate the reputations of those they disagree with.

Courtroom hearings into Fox’s support for Trump are unlikely to reflect well on the organisation. Lachlan is clearly no Trump fan, but Fox played a pivotal role in Trump’s rise and several of the network’s star commentators attempted to undermine the legitimacy of Trump’s defeat.

The fact Lachlan is not specifically named in the story is another legal hurdle to overcome. And Fox itself has no legal redress. A quirk of Australian defamation laws is that corporations cannot sue. Supposedly they have no reputation to denigrate, which must come as a surprise to those organisations spending millions to maintain the image of their brands.

The case may be the first test of a new public interest defence that has just become part of defamation law across most of Australia. It protects reporting in the public interest and requires a plaintiff to show a publication has caused serious harm to their reputation.

However, The Age’s chief reporter, Chip Le Grand – who readers of Reputation Eye may recall was the journalist duped into reporting a bizarre conspiracy theory by the co-founder of Grill’d to explain a video of him using an ice pipe – suggested Crikey was not worthy of the public interest defence.

He wrote that “Crikey is not defending important, investigative journalism nor even, especially good journalism” and the “offending story” was an opinion piece which “offered no unique insights” and “didn’t elicit any new facts about the Capitol riots”. Le Grand contrasted it with The Age’s “diligent, fact-based reporting”.

A legal defeat would cripple Crikey, but its leaders, Eric Beecher and Peter Fray, are both former editors of the Sydney Morning Herald and unlikely to take a backwards step. Forthright and fearless, they will be relishing having drawn Murdoch into the ring.

They’ve already achieved great brand exposure, a lift in subscriptions and a massive amount of largely favourable publicity.

Reputation Eye’s verdict: Lachlan has already lost and Crikey has little to lose.

Mark Forbes

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