Private Media has filed its defence to the defamation claim made by Lachlan Murdoch against the company and its journalists. Since the beginning, our intention has been to bring the use of defamation law by the rich and powerful into the light, so we wanted to explain the key points of our legal defence and what we are going to do from here.
Our defence has three main elements.
Firstly, we simply deny that we have defamed Lachlan Murdoch. The relevant words in our article are “The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis”. The court will decide what our readers would have taken them to mean. We do not believe that the average Australian of reasonable intelligence (the test for this part of defamation law) would have read our article and interpreted it in the way Mr Murdoch claims.
Secondly, we take issue with whether Crikey should be prevented by law from stating honestly held opinions, as an act of free speech, on a matter of obvious and high public interest. It is our opinion that Fox News actively supported and promoted a concerted attempt to jeopardise American democracy. That attempt began with Donald Trump’s false claims of a “stolen” election and culminated in the violent mob assault on the US Capitol on January 6, 2021.
It is fair that someone might disagree with the opinion we expressed. But we think it is a reasonable argument to make, and the right to express such an opinion is absolutely critical to the functioning of an open, modern democracy. We stand firmly against censorship, especially in matters of significant public interest. As such, our case will test the new “public interest” defence, specifically as it relates to opinion writing, as opposed to investigative reporting.
The final element of our defence is that we do not believe Lachlan Murdoch has suffered any serious harm. Again, we think it is important in an open, well-functioning society that the rich and powerful can be critiqued, and that there is a high bar to reach before they have suffered serious harm from an opinion article.
Taking on this fight is risky and we are not foolish enough to predict its outcome. However, we believe that there is an issue of fundamental public importance at stake, and that is why we are defending the case brought against our company and our journalists.
From here, we must largely hand the matter over to the courts of law. While other media outlets will be free to critique the process and offer all kinds of opinion on the matters at stake, we intend to largely remain silent. In the rest of our journalism, however, we will continue to hold the rich and powerful to account, as we have always done at Crikey.
We believe what we published was in the public interest. We believe unreservedly in the principle of a free press. Thank you to all who have supported us, and all of those who continue to do so.