Crikey has been given just under a week to update its defence in the defamation suit brought against it by Fox News chief executive Lachlan Murdoch over an article that referred to the Murdoch family as an “unindicted co-conspirator” in the January 6 attack on the US Capitol.
On Tuesday, Federal Court Justice Michael Wigney gave Crikey’s owners Private Media until April 11 to amend its defence to add what’s known as a “contextual truth defence” to the case, in addition to the defences of public interest and qualified privilege already pleaded.
The proposed update comes in response to Murdoch’s expansion of the case late last year, which added two new defendants to the case. The defendant list now includes Crikey’s political editor Bernard Keane, former editor-in-chief Peter Fray, chairman Eric Beecher, and CEO Will Hayward.
The updated defence could include personal correspondence between the Murdoch family over Fox News’ coverage of election fraud claims, recently revealed in a separate case brought against Fox Corporation in the US by Dominion Voting Systems.
Dominion is suing Fox over claims Dominion played a role in facilitating voter fraud through the 2020 US presidential election. The US$1.6 billion defamation case will go to trial on April 17 and is expected to last six weeks.
Michael Hodge KC, acting for Private Media, told the Federal Court on Tuesday he was unsure why correspondence revealed in the Dominion filings wasn’t captured during the discovery process of this case.
He said Murdoch could be “culpable” for not stopping Fox News’ broadcast of theories its leadership thought to be false.
“He controls Fox Corporation. He permitted for the commercial and financial benefit of Fox Corporation this lie to be broadcast in the United States,” Hodge told Justice Wigney.
“We say that gives rise to culpability where you are allowing and promoting this lie and that lie is the motivation for the insurrection.”
The Dominion filings suggest that election fraud programming broadcast on Fox News was discussed by editorial leadership at twice-daily meetings from November 2020 through March 2021. These meetings, the filings claim, were “at times” attended by both Lachlan and Rupert Murdoch.
Murdoch’s barrister Sue Chrysanthou KC described the proposed update to Private Media’s 1000-page defence as an “incomprehensible waste of time” that risked turning the case into “something that resembles some sort of inquiry”.
“They don’t care if they win or lose. They are happy to martyr themselves in this litigation, to seek more money from the GoFundMe campaign,” Chrysanthou said.
“They win by the furtherance of that narrative in this court.”
Hodge maintained the updated defence wouldn’t derail the court’s trial schedule.
Murdoch is suing Private Media over an opinion article published by Crikey in June 2022 that claimed the Murdochs contributed to the January 6 Capitol riot. The article’s headline was: “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator.”
Murdoch originally argued the article inferred he “illegally conspired with Donald Trump to overturn the 2020 presidential election result” and “illegally conspired with Donald Trump to incite a mob with murderous intent to march on the Capitol”.
On Tuesday, Justice Wigney said he considered sending the case back to mediation, saying the case seemed to be “driven more by ego and hubris and ideology than anything else”.
