Lawyers for Crikey, which is being sued for defamation by Lachlan Murdoch, are considering the implications for its defence of the admission by Rupert Murdoch that Fox News hosts endorsed Donald Trump’s lie that the 2020 US election was stolen.
Crikey’s publisher Private Media has confirmed the deposition in the US defamation lawsuit brought by Dominion Voting Systems against Fox News is being examined by its legal team ahead of Crikey’s amended defence being filed on 7 March but declined to comment further.
The federal court trial has been set down for October and will run for three weeks, with Lachlan Murdoch, the chief executive of Fox Corporation, expected to attend at least some of the proceedings. Murdoch was granted leave last month to expand the case to add Private Media’s chairman Eric Beecher and its chief executive Will Hayward as respondents.
Murdoch launched defamation proceedings against the independent Australian news site last year over an article published in June that referred to the Murdoch family as an “unindicted co-conspirator” in the US Capitol attack.
The article Murdoch claims is defamatory argued the former US president Richard Nixon was infamously the “unindicted co-conspirator” in the Watergate scandal and drew an analogy that “the Murdochs and their slew of poisonous Fox News commentators were the unindicted co-conspirators” in the events of 6 January 2021.
In the separate US case, the voting machine company Dominion has accused Fox News and its parent company, Fox Corporation, of maligning its reputation. Both cases revolve around the influence of Fox News commentators on the US Capitol attack.
Court documents revealed on Tuesday show Rupert Murdoch acknowledged that the Fox News hosts Maria Bartiromo, Lou Dobbs, Sean Hannity and Jeanine Pirro “endorsed” the false narrative promoted by Trump.
Murdoch acknowledged in his deposition that he could have ordered the network not to platform Trump lawyers such as Sidney Powell and Rudy Giuliani on its programs: “I could have. But I didn’t,” he said.
Prof David Rolph, a defamation expert at the University of Sydney’s law school, said the Dominion revelations could affect the public interest defence which Crikey is running.
“Those revelations just further emphasise that the subject matter of the Crikey article that’s being sued on was a legitimate matter of public interest,” Rolph told Guardian Australia.
“Public interest defence in Australia, though, will turn on the reasonableness of the publisher’s belief in the publication of the article. Obviously, the subject matter of the article is a matter of public interest, but the defence in this matter is a bit more than that.”
Private Media has pleaded three defences: public interest, implied freedom of political communication and failure to accept reasonable offer of amends.
Rolph said in the US the plaintiff bore the onus of proof and had to show that the material was published with actual malice, which is a much higher standard than Australia and other common law jurisdictions.
“What is very interesting about those revelations is that makes it clear Dominion is going to have a fairly good chance at establishing liability,” he said.
“And so I think it would seem odd if on the one hand in the United States Dominion succeeds, and here in Australia Crikey doesn’t with its public interest defence.
“The laws in the two places are different, but I think people will draw conclusions about the relative protection of reputation and freedom of speech if that’s the outcome in the United States and Australia.
It was earlier revealed in court filings that hosts at Fox News privately ridiculed Trump’s claims that the 2020 election was stolen while simultaneously peddling the same lies on air.
Dominion sued Fox News in March 2021 and November 2021 in Delaware superior court, alleging the cable TV network amplified false claims that its voting machines were used to rig the 2020 election against Trump.
