This article is part of a series about a legal threat sent to Crikey by Lachlan Murdoch, over an article Crikey published about the January 6 riots in the US. For the series introduction go here, and for the full series go here.
It all started in late June. As the world digested revelations from the inquiry in Washington into the January 6 riots at Capitol Hill, Crikey went to work, offering its subscribers its typical mix of news, analysis, investigation and opinion. Somewhere in Sydney, a lawyer for Lachlan Murdoch was paying close attention to every word we published…
The following is a summary of the correspondence between lawyers representing Lachlan Murdoch and Crikey. To read all the letters in full, as well as more on this story, click here.
Public interest journalism as usual
Wednesday, June 29 2022
Crikey publishes a routine piece of analysis by Bernard Keane about the sordid state of US politics. The copy contains a single reference to Fox News:
The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.
The headline of the piece reads:
Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator
‘Criminal conspiracy!’ … ‘Traitor!’ … ‘Murderous intent!’ … ‘Treachery!’ … ‘Law breaker!
Thursday, June 30
Under the heading “Defamation of Mr Lachlan Keith Murdoch”, Lachlan Murdoch’s lawyer John Churchill dispatches a five-page concerns notice to Crikey alleging that the previous day’s story carried these “defamatory imputations of and concerning him”:
1. Mr Murdoch illegally conspired with Donald Trump to overturn the 2020 presidential election result;
2. Mr Murdoch 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;
3. Mr Murdoch illegally conspired with Donald Trump to incite a mob with murderous intent to march on the Capitol;
4. Mr Murdoch illegally conspired with Donald Trump to break the laws of the United States of America in relation to the 2020 presidential election result;
5. Mr Murdoch knowingly entered into a criminal conspiracy with Donald Trump to overturn the 2020 presidential election result;
6. Mr Murdoch knowingly entered into a criminal conspiracy with Donald Trump and a large number of Fox News commentators to overturn the 2020 election result;
7. Mr Murdoch engaged in treachery and violent intent together with Donald Trump to overturn the 2020 presidential election result;
8. Mr Murdoch was aware of how heavily armed many of the attendees of the planned rally and march on the Capitol building were on January 6 before it occurred;
9. Mr Murdoch was a co-conspirator in a plot with Donald Trump to overturn the 2020 election result which costs people their lives;
10. Mr Murdoch has conspired with Donald Trump to commit the offence of treason against the United States of America to overturn the 2020 election outcome;
11. Mr Murdoch has conspired with Donald Trump to commit the offence of being a traitor to the United States of America to overturn the 2020 election outcome;
12. Mr Murdoch should be indicted with conspiracy to commit the offence of being a traitor to the United States of America to overturn the 2020 election outcome;
13. Mr Murdoch should be indicted with the offence of being a traitor to the United States of America to overturn the 2020 election outcome;
14. Mr Murdoch conspired with Donald Trump to lead an armed mob on Congress to overturn the 2020 election outcome.
According to Mr Churchill, “the unwarranted attack on my client, without any notice and in complete disregard to the facts is malicious and aggravates the harm to my client”. As such, the article must “be deleted immediately and permanently from the Crikey website”, after which “you must each thereafter immediately publish an apology in the following form …”
APOLOGY TO LACHLAN MURDOCH
On 29 June 2022, Crikey and Mr Keane published an article and social media posts about Lachlan Murdoch.
Crikey and Mr Keane accept that the claims made in the article and other publications were false and defamatory of him. They were baseless allegations that should never have been made.
Crikey and Mr Keane unconditionally withdraw the claims and apologise to Mr Lachlan Murdoch for the hurt and offence caused to him by reason of the publication of the article and the social media tweets and posts (the apology).
After that, says the letter, Lachlan Murdoch will “consider whether he pursues any further relief, which will invariably depend on the promptness with which the above steps are taken and having regard to the damage that he has already suffered by reason of the scandalous allegations that have been published about him”. The letter then warns that “any delay in deleting the matters and publishing an apology will necessarily increase the damages payable to my client”.
‘Each of the alleged imputations are contrived and do not arise’
Thursday, July 7
“Dear Mr Churchill,” writes our lawyer Peter Bartlett, from the law firm MinterEllison, in a three-page response to the concerns notice, “it cannot be reasonably suggested that the article, the Crikey Facebook post and/or the Crikey tweet (together, the Crikey publications) caused actual harm of a serious kind to Mr Murdoch. This is particularly so in circumstances where various other (much larger) mainstream media outlets, including (but not limited to) The Washington Post, The New York Times and the ABC have published stories in the past 12 months about Fox News and its alleged propagation of the Big Lie”.
Anyway, argues Bartlett, ”to the extent that any harm has been caused to Mr Murdoch by reason of the Crikey publications, it pales in comparison to the harm that has already been occasioned by the multitude of other global media outlets that have published similar allegations, such that any harm said to have been caused by the Crikey publications could not conceivably satisfy the high threshold required by your client to successfully commence proceedings against our clients”.
As for the “large number of defamatory imputations concerning your client”, writes Bartlett, “in our view, each of the alleged imputations are contrived and do not arise”. That’s because “questions of meaning are determined objectively by reference to the hypothetical construct of the ‘ordinary reasonable reader’” who is “generally regarded as being fair-minded; neither perverse, morbid nor suspicious of mind, nor avid for scandal; does not search for strained meanings; and reads the entire article and considers the context as a whole”.
Crikey’s lawyer then addresses the issue of who is the “Murdoch” referred to in the headline of the story, arguing that “the ordinary reasonable reader would interpret the reference to ‘Murdoch’ as a reference to Rupert Murdoch, being the person most synonymous with Fox News, and the person who has a renowned association with Donald Trump”.
As for the suggestion in the concerns notice that the Crikey article claims that Lachlan Murdoch “had some kind of knowing, direct and intimate involvement with the events of January 6”, not only does it not “contain any such suggestion”, but the article “plainly lays blame for the creation and scheming of the insurrection on Trump”.
Bartlett argues that “in all the circumstances, we consider that the interpretation of the imputations, as set out in the concerns notice letter, are likely to be rejected by any court”, but “as a goodwill gesture, our clients have removed the article, the Crikey Facebook post and the Crikey tweet”.
And as an additional goodwill gesture: “Our clients invite your client to participate in an on-the-record interview with Crikey, which would cover topics relating to Fox News and its coverage of the 2020 US election results. Please let us know if your client accepts our invitation”.
‘Mr Murdoch is content to have this issue determined by a Court’
Tuesday, July 19
“The assertions you make in relation to serious harm,” responds Lachlan Murdoch’s lawyer in his next letter to Crikey, “are disingenuous and they aggravate the harm to our client. The notion that a mass media publication accusing a public figure of criminal conduct has not caused, and is not likely to cause, serious harm is spurious.”
As for the fact that there has been global coverage of Fox News’ involvement in the events at the Capitol, Mr Churchill is dismissive: “It is offensive to my client and aggravates his hurt that you falsely suggest that the allegations made by your clients in the article, Crikey Facebook post and Crikey tweet have been published elsewhere. That is plainly not true. It is only in your clients’ publications that such scandalous allegations of criminal conduct and conspiracy have been alleged, directly imputing personal and deliberate participation in a plan to cause violence.”
Mr Churchill then reveals that “persons have approached members of Mr Murdoch’s family, staff and his friends about the allegations in the article, Crikey tweet and Crikey Facebook post that he is an unindicted co-conspirator with Donald Trump, and have specifically queried whether he was the subject of evidence before the House Select Committee”.
So what happens next? Lachlan Murdoch “is content to have this issue determined by a Court. In my experience, a baseless assertion to this effect is commonly made on behalf of media organisations”, says Mr Churchill. “Senior Counsel who settled the imputations is one of the most experienced defamation counsel in the country.”
And “the notion that a person is not defamed in a publication because he is only ‘mentioned twice’ is untenable”, writes Mr Churchill. As he continues:
The fact that some readers identified another Murdoch does not detract from the fact that my client is also identified — you are no doubt aware of the High Court authority to that effect. Your clients’ intention as to who they were referring to is irrelevant to that issue. As we have already informed you, Lachlan Murdoch was the executive chairman and CEO of Fox Corporation on 6 January 2021 and has held those positions since March 2019. Any person who then went on to read the article from the link in either the Crikey tweet or Crikey Facebook post would have seen that the reference to Murdoch in each of those social media posts was to more than one Murdoch.
Mr Churchill then turns to the article’s removal from the Crikey website and his client’s previous interactions with Crikey:
Given the unjustified and scandalous allegations made in the publications, it is unsurprising that your clients’ reaction was to delete them. They were unjustified, unreasonable and malicious. In that regard we note that this is not the first time Private Media and [Crikey editor-in-chief] Mr Fray have indefensibly defamed Mr Murdoch without any basis whatsoever. It is concerning that your clients persist, in quite an unprofessional and unethical way, to make publications about Mr Murdoch in which serious allegations are made, and without any attempt to contact him before publication in order to give him an opportunity to respond prior to publication.
Finally, insists his lawyer, “Mr Murdoch’s primary concern is to seek redress in relation to this unjustified attack on his reputation. For that reason, I am instructed to offer your clients one final opportunity to make amends in the terms set out in the concerns notice. This offer is open until 4pm Friday 22 July 2022.”
He concludes, “Mr Murdoch will rely upon this letter, and any response to it (or lack of response) in any proceedings commenced, including in relation to aggravated damages, costs and injunctions and otherwise reserves all his rights.”
‘A genuine attempt by our clients to resolve this matter’
Wednesday, July 27
“This letter contains an offer to make amends, pursuant to section 13 of the Defamation Act 2005 (NSW), in respect of your client’s purported concerns notice dated 30 June 2022,” writes Crikey’s lawyer Michael Bradley to Mr Churchill. “It is a genuine attempt by our clients to resolve this matter, notwithstanding that our clients maintain that none of the alleged imputations were conveyed by the publications the subject of the concerns notice.”
Our offer was to publish this statement in Crikey, under Peter Fray’s byline:
Mr Lachlan Murdoch
On 29 June 2022, Crikey published an opinion piece by Bernard Keane titled “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator.”
The article laid out a case against Donald Trump in respect of the attempt to overthrow the result of the 2020 US presidential election, culminating in the assault on the Capitol on January 6 2021. It concluded with Keane’s opinion that:
“The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.”
Mr Lachlan Murdoch took exception to the article, instructing his lawyers to issue a defamation concerns notice to Crikey as well as to Bernard Keane and me personally, threatening to sue us.
As a gesture of goodwill, we made the decision to remove the article from publication as soon as we received the letter from Mr Murdoch’s lawyers.
We would now like to set the record straight. Mr Murdoch feels that the article conveyed a large number of extremely serious defamatory imputations regarding his actions, by virtue of the article’s title and its closing sentence (which were the only mentions of him in the article).
We do not agree that the article did convey these imputations. However, we don’t want there to be any confusion about exactly what we do say about his actions.
To be fair to Mr Murdoch, this is the full list of defamatory imputations he says the article conveyed about him:
[Full list of imputations found above in Mr Churchill’s letter of June 29]
There is no evidence that Mr Murdoch did any of the things described above. Crikey does not say that he did any of them.
Crikey does believe that Mr Murdoch bears some responsibility for the events of January 6 because of the actions of Fox News, the network he leads. However, Crikey does not believe that he was actively involved in the events of that day as the things described above would suggest.
‘An attempt by your clients to publish, with Mr Murdoch’s permission, a self-serving justification of their conduct’
Friday, July 29
“The offer made in your letter is rejected by Mr Murdoch,” responds the next legal missive to Crikey from Lachlan Murdoch’s lawyer.
That’s because “a genuine offer to resolve my client’s complaint would not include the republication of the defamatory material as part of a statement published with his consent. That is particularly the case given the disingenuous references in the statement to your clients’ (non-existent) ‘goodwill’ and fairness to Mr Murdoch. Contrary to the purpose of the making of amends under the act, the suggested statement appears to be an attempt by your clients to publish, with Mr Murdoch’s permission, a self-serving justification of their conduct, which defames him in the same sense of the article, and thereafter adds additional allegations”.
The offer, writes Mr Churchill, is not a reasonable one, and if Crikey is “not willing to retract and apologise for the content of the article, then it would appear, regrettably, that the matter cannot be resolved”.
Oh, and “Mr Murdoch will rely upon this letter, and any response to it (or lack of response) in any proceedings commenced, including in relation to aggravated damages, costs and injunctions and otherwise reserves all his rights.”
‘Our client stands by its reporting as a matter of critical public importance’
Tuesday, August 2
From Crikey’s lawyer Michael Bradley to Mr Churchill:
1. We refer to your letter of 29 July 2022.
2. Our letter of 27 July 2022 included no admissions.
3. You have rejected our client’s offer to make amends on baseless assumptions regarding our client’s motivations.
4. Our client published its article as a legitimate exercise in press freedom and freedom of speech. It stands by its reporting of what is a matter of critical public importance.
5. You chose to come up with the most extreme set of wildly exaggerated imputations imaginable, none of which were conveyed by the article. An ordinary, reasonable person would not have taken those imputations from the article, and nor would a court.
6. Having alleged such extreme imputations, you now demand that our client publishes a retraction and apology with no explanation of what it is apologising for. That is unreasonable.
7. Your position is that Mr Murdoch alone may dictate what other media publishers can say about his actions. The tone of your letters is peremptory and intimidatory, threatening litigation from the outset and including the completely unnecessary threat of personal suit against Mr Fray and Mr Keane. As you know, nothing is to be gained from joining them to any litigation.
8. Our client accepts that Mr Murdoch does not wish to resolve this matter. Our client stands by its commitment to freedom of speech and freedom of the press, and is fully prepared to defend those freedoms in court if Mr Murdoch wants to use his resources to attempt to curtail them.
9. Lachlan Murdoch stated in his Keith Murdoch Oration in 2014 that “a free media must be dependent on no one for favours”, and censorship in any form “erodes our freedom to know, to be informed, and to make reasoned decisions in our society and in our democracy”. Our client agrees.
10. We hold instructions to accept service on behalf of our clients.
‘Mr Murdoch is not seeking to dictate stories … he isn’t unreasonable or intimidatory’
Thursday, August 4
“We disagree with each of the contentions” in the August 2 letter, Mr Churchill informs us. “Your clients propose to repeat the defamation, rendering your offer worthless, and in fact worsening the situation. No lawyer with defamation expertise would consider it a rational offer in the circumstances.”
Mr Churchill then presents his view of the Crikey-Lachlan Murdoch relationship:
Crikey, over the last two years, has published dozens of articles about my client. A number of those make baseless allegations against Mr Murdoch and have been the subject of complaint. On each occasion, where a complaint has been communicated to your clients, the publications have been amended or taken down entirely. On two occasions apologies have been made. Some of those publications attracted significant readership and commentary on social media.
Despite being a frequent subject of Crikey’s ire, never has Mr Murdoch been approached prior to publication for his response by your clients. On each occasion the allegations appeared to spring from no proper source or information and have always involved some serious act or misconduct. The article the subject of this complaint is yet another example of this pattern of behaviour by Crikey towards Mr Murdoch.
Mr Murdoch, says Mr Churchill, “is not seeking to dictate stories … nor has he been unreasonable or ‘intimidatory’, indeed his requests have been more than fair given your clients have accused him of crimes in a ‘free to read’ article that was heavily promoted on social media using his name in the caption”.
The article, asserts Mr Churchill, “clearly fails the tests of responsible and reasonable public interest journalism. Making allegations about my client in the article was a mistake that should be corrected, and any fair-minded publisher would have promptly offered a genuine apology. Your quotes and exaltations about curtailing freedom of speech do not apply — because, as occurs from time to time to most publishers, the journalism in this case is indefensible”.
‘Crikey stands by its reporting’
Tuesday, August 9
Dear Mr Churchill,
It is not Crikey’s responsibility to solve a problem that you and your client have created. You are asking that our client apologise for the most extreme possible interpretation of our article, but not explain what that interpretation is. Readers would think our client is apologising for the article itself. It won’t. It stands by its reporting.
Yours sincerely
Michael Bradley
Managing Partner
Has Crikey done the right thing by publishing these letters? Let us know by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
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