Murdoch loses bid to throw out part of Crikey’s defamation defence

Online news outlet Crikey has had a preliminary win in its defamation fight with Lachlan Murdoch, after a judge rejected Murdoch’s application to throw out part of the media outlet’s public interest defence before the trial.

In a decision in the Federal Court in Sydney on Friday, Justice Michael Wigney said he was “not persuaded it’s appropriate to strike out any paragraph of Crikey’s defence” before the trial.

Eric Beecher, the chairman of Private Media, the publisher of Crikey; Trump supporters outside the Capitol in 2021, and Lachlan Murdoch.Credit: Thom Rigney, AP, Getty

He also rejected an application by Crikey to strike out part of the News Corp co-chairman’s reply to its defence.

The issues raised were “more appropriately determined on a final basis at trial”, Wigney said.

Murdoch, chief executive of Fox Corporation and elder son of media baron Rupert, filed defamation proceedings against Crikey in August over a June 29 article naming his family as “unindicted co-conspirators” of former US president Donald Trump following the deadly US Capitol riots in 2021.

Crikey is seeking to rely in part on a new public interest defence that has not yet been tested in Australia. The new defence started last year in NSW, where the trial will be held.

Under the defence, Crikey’s publisher Private Media – chaired by Eric Beecher – must prove the “defamatory matter” concerned an issue of public interest and it “reasonably believed ... the publication of the matter was in the public interest”.

Murdoch sought to have the first 16 paragraphs of Crikey’s defence, presented under the heading “factual background”, struck out or used for a limited purpose.

But Wigney said the paragraphs were “potentially relevant to Crikey’s public interest defence” and rejected the application.

He described the drafting of parts of Crikey’s defence as “not ideal” but said it was “at the very least arguable” the paragraphs were relevant to determining whether the article concerned an issue of public interest.

The paragraphs include an allegation that “from around 7 November 2020, hosts and guests of Fox News repeatedly cast doubt on the outcome of the 2020 presidential election and directly or indirectly promoted on air ... allegations, without reasonable basis, of voter fraud made by Mr Trump” before the riots.

Crikey also alleges Murdoch has not “publicly repudiated the claims made by hosts and guests of Fox News”.

Wigney said it was “at least arguable” that it was open to a publisher to “plead and seek to prove” facts at trial that “would, if proved, tend to demonstrate the defamatory matter in question concerned an issue of public interest”.

He said it was “significantly less clear” whether the paragraphs were relevant to whether Crikey reasonably believed the publication of the matter was in the public interest.

Wigney added that an argument the paragraphs should be struck out on the basis they would cause “delay because the court may need to view many hours of Fox News programs” should not be accepted.

“The mere fact that time will be taken at trial ... does not provide a basis for striking out the pleading of that fact,” Wigney said.

Wigney said Crikey may have “some difficulties proving some of the things asserted” in those paragraphs, but if it was “unable to prove those matters, the asserted problem disappears”.

Crikey will file an amended defence.

The parties return to court in November.

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