Gina Rinehart tried to censor Crikey articles using ‘ridiculous’ trademark request to tech companies

A mining company run by billionaire Gina Rinehart says that trademark complaints filed against Crikey which led to the temporary censorship of this outlet’s critical coverage of Australia’s richest woman were erroneously filed by a third party on its behalf as part of its efforts to stamp out fraudulent advertisements.

Private Media, the publisher of Crikey, The Mandarin and SmartCompany, has been the subject of repeated intellectual property complaints on behalf of 150 Investments Pty Ltd, a company that’s directors include the mining billionaire.

These complaints led to at least one article between temporarily taken offline by Amazon and the repeated restriction of Private Media’s use of Meta’s advertising platform as the tech companies assessed the complaint.

Complaints were submitted by James Christopher from Takedown Reporting on behalf of 150 Investments Pty Ltd against various articles on Crikey mentioning Rinehart for violating their trademark on “Gina Rinehart“.

These articles include “Heiress Gina Rinehart and the fine art of self-interested drivel”, Your Aussie friend and Trumpette!’: Gina Rinehart is an active member of Donald Trump’s female fan club” and “Big bumbling boy of Western civilisation classes up the AFR business awards”.

The complaints claim that the articles contain unspecified false information which is damaging the reputation of Rinehart. 

“The above-mentioned article in your platform is hosting false information related to Gina Rinehart who is the Executive Chairman of Hancock Prospecting. This article has not been published by our client nor have they authorized this content. This false content is misleading and affecting the reputation of our client,” said the complaints which were then sent to Private Media for a response.

These complaints temporarily led to the takedown of an article from the internet and have repeatedly restricted Private Media’s ability to use Meta’s advertising platform as the companies assessed the complaint. 

After publication, a Hancock Prospecting spokesperson confirmed to Crikey that Takedown Reporting was working on their behalf but denied that it had tried to censor Crikey. They said that this third party had “inadvertently” taken it down while seeking the removal of scam ads that fraudulently use Rinehart’s likeness.

“The posts in question were inadvertently caught up in a third party’s efforts to issue takedown requests to scam ads on Facebook…. At no time has Hancock Prospecting tried to ‘censor’ any reporting,” they said.

University of Sydney senior lecturer Dr Fady Aoun, who is one of the authors of Intellectual Property: Commentary & Materials — Sixth Edition, called the claim a “ridiculous” one that would not stand up in court: “This is not trademark use that would enliven a cause of action in Australia,” he said on the phone.

Aoun said that Crikey’s use of the text Gina Rinehart did not attempt to sell a good or service related to the trademark. While a primary purpose of a trademark is to show a “badge of origin”, meaning that something belongs to an individual or a company — for example, Nike’s “Swoosh” logo to demonstrate it is one of their products — Aoun believes this claim goes beyond that.

“I tell my students it’s a badge of origin and not a badge of control,” he said.

Another potential but more obscure trademark claim is that someone is spreading malicious falsehoods about a trademark. Private Media has not received any direct correspondence from 150 Investments Pty Ltd about claims of false information. 

But, in Aoun’s opinion, the purpose of these claims is to take advantage of tech companies’ risk-averse approach to complaints which sees them takedown or suspend content regardless of whether it has merit, placing the onus on the complaint’s subject to prove they have not violated these laws.

“The playbook is to obfuscate, to delay because the actual basis of the argument is quite weak,” he said.  

UNSW Professor in the faculty of law Dr Kathy Bowrey agreed that there is “zero” intellectual property issue after reviewing the claim. Similarly, UNSW Professor Michael Handler suggested that there are other, more appropriate avenues to pursue a claim of false information, such as defamation law and Australian consumer law.

“Trademark law isn’t meant to operate for companies making these sorts of referential use of trademarks,” he added.

Takedown Reporting is a firm that “monitors and expedites the removal of fraudulent websites, copyright infringement, imposter social media accounts, and other digital entities to mitigate the risk posed by cyber criminals.” 

In 2022, an investigation by scamwatch website Hucksters.net found that Takedown Reporting is run by James Christopher Foster and his company ZeroFOX. The report documents Takedown Reporting’s attempt to use an intellectual property claim through cloud hosting provider Cloudflare to take down a Hucksters.net article of another individual and, after it was published, a claim to Google to get them to delist the investigation from their search engine. Crikey did not receive a response from the email address provided by Takedown Reporting.

Rinehart, who frequently publishes full articles from news outlets on her own website despite her apparent zeal for protecting intellectual property, has previously spoken out about her concerns over censorship.

After delivering a video address to school students for the 125th anniversary of her alma mater St Hilda’s Anglican School for Girls in which she questioned the evidence supporting climate change, a spokesperson for the billionaire criticised the school for editing part of the video, claiming Rinehart was being “censored”. 

Private Media CEO Will Hayward said the complaints were baseless and an abuse of tech companies’ intellectual property complaints systems.

“Nothing we wrote is defamatory or unfair. It is important that Australia is a country where organisations like Crikey can critique the rich and powerful,” he said.

Update: This article has been updated after publication to reflect a response from Hancock Prospecting.