Hang on, doesn’t Murdoch support free speech?

This is a story that, in many respects, is of David and Goliath proportions. On one side is Fox News boss Lachlan Murdoch, one of the world’s most powerful media executives, and on the other is Crikey, a small, progressive news website run by long-time local media proprietor and former editor Eric Beecher.

At issue is an almost throwaway last line in a comment piece published in late June by Crikey on the US congressional hearings investigating the January 6 attack on the US Capitol in 2021. The opinion article was about Donald Trump’s egregious attempts to subvert the election result and ended thus: “The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.” According to Lachlan Murdoch’s lawyers, the story implied the media scion “illegally conspired with Donald Trump to incite an armed mob to march on the Capitol”.

From left: Private Media chair Eric Beecher, the US Capitol on January 6, 2021, and Lachlan Murdoch.Credit: Thom Rigney, AP, Getty Images

Murdoch took umbrage, and threatened to sue Crikey for defamation. The website responded by removing the article but refused to apologise and questioned the validity of the case. In a tit-for-tat exchange of legal letters, the stoush escalated, with both sides unwilling to back down and Crikey goading Murdoch into taking it to court.

The case may well end up before a judge – a juicy case indeed – but there are some broader implications at play. First, Lachlan’s father Rupert – one of the richest and most powerful media moguls in the world – has never sued for defamation. You can criticise the elder Murdoch for much, but at least he appears to understand that with his endless opportunities to have his say, suing for supposed reputational damage is not appropriate.

His son, however, has no such self-awareness but is thin-skinned – the article never even named Lachlan. For any Murdoch, presiding over media organisations which at their worst insult, distort and aggressively attack opponents, to sue a small website for saying bad things about him is astonishing. The Murdoch media champion “free speech” to the point of nausea, but not this time.

The other embarrassing aspect to this case is that Lachlan could not have sued a similar website in the US for defamation because the United States protects the free speech he champions. In response to Murdoch’s threat of defamation, Crikey has claimed that the Fox News boss would struggle to prove serious harm when similar accusations to what it published are regularly made in the US media.

The US Supreme Court, which largely sets precedents for guiding defamation cases, has repeatedly ruled in favour of supporting the first amendment relating to freedom of speech, giving media companies wide protections in their reporting and commentary.

The media is far from perfect, but Australia’s defamation laws are a serious brake to heated commentary – as the Crikey piece was – as well as substantial investigative journalism in the public interest.

In the middle of last year, new defamation laws came into force across most of Australia which beefed up the ability of media groups to defend cases. The new laws include a public interest-style defence aimed at protecting investigative journalism and a requirement for a prospective plaintiff to show a publication has caused, or is likely to cause, serious harm to their reputation.

The new laws are yet to be tested in court, but there is concern that, as is the case with Murdoch taking on Crikey, they could continue to be used as a way to shut down what in most Western nations would be considered legitimate opinion. We would hope that judges in this country use the new laws to lift the bar when it comes to giving media companies the ability to do their job in holding those in power to account.

And that means for all media, including Crikey. The website is using this legal case to drive subscriptions, which is predictable. Attacking Murdoch – and the “mainstream media” including The Age – is part of its business model, and it can be lazy and self-righteous in doing so. But The Age will always support free speech – with limits – and this is as gobsmacking an example of an attempt to stomp on free speech as can be imagined.

In this case, we’re with the little guy.

Gay Alcorn sends an exclusive newsletter to subscribers each week. Sign up to receive her Note from the Editor.