Murdoch v Crikey: even if Lachlan wins, he loses

In one of Succession’s best lines, Shiv Roy corrects a wayward editor who has threatened to embarrass her by going public about a blunt proprietorial intervention: “The thing about us, Mark – and you should know this by now – we don’t get embarrassed.”

The scene is purely fictional, but the Roy family is of course loosely based on the Murdochs and the exchange came to mind as News Corp co-chairman Lachlan Murdoch ramped up his defamation case against the independent website Crikey this week. The case looks certain to go to trial, after a court-ordered attempt at mediation failed on Wednesday.

Private Media chairman Eric Beecher, the January 6 insurrection on Capitol Hill, and Lachlan Murdoch. Credit: Thom Rigney, AP, Getty

Lachlan’s case – over a June opinion piece by politics editor Bernard Keane, which described the Murdochs as “unindicted co-conspirators” in the January 6 insurrection in the United States – sparked headlines around the world. Commentators observed that the heir-apparent was “thin-skinned”, unlike his father Rupert, who always thought it a bad look for a media proprietor to sue a journalist.

As if Lachlan could care less about the publicity: he has a point to prove. As one source told me during research for my biography of Lachlan, he has shown a “talent for vengeance” throughout his career, culminating in the ouster of internal foe Roger Ailes, the legendary Fox News chief executive sacked over sexual harassment allegations in 2016.

Lachlan is angry enough that he is willing to undergo cross-examination – a stressful and potentially embarrassing experience for anyone let alone Lachlan, who jealously guards his privacy despite decades in the spotlight, and whose last experience in open court was over the collapse of One.Tel, when he said “I can’t recall” 881 times and was judged an unreliable witness.

Crikey wants to see the Murdoch scion in court, but I would be surprised if Lachlan gives it the satisfaction.

Far from taking the mediation “off ramp”, however, this week he doubled down. As this masthead reported on Thursday, the media mogul is seeking to expand his claim against Crikey, following evidence that its publisher, Private Media, engaged marketing consultants to develop a “Lachlan Murdoch campaign”. He seeks to join the publisher’s chairman, Eric Beecher, and chief executive Will Hayward to the case, in a move that could delay any trial until 2024. (I have effectively worked for both Murdoch and Beecher, as a former journalist at The Australian and for Crikey.)

It would be foolish to try to express an opinion about the merits of a case which has a long way to run, with plenty of evidence still to come out, much less to anticipate the verdict.

As a journalist, I naturally favour freedom of the press – American journalists I’ve spoken to about this case are stunned that you can get sued in Australia for expressing an opinion – but the Murdoch camp insists Crikey’s marketing campaign is an abuse of free speech: a blatant attempt to drive subscription and revenue.

Inside Fox Corp, executives believe Fox News snuffed out then President Trump’s plan to declare victory prematurely on election night 2020, by being first to call swing state Arizona for Biden. Thereafter, says Fox, the channel simply covered intrinsically newsworthy claims of vote-rigging by the Trump campaign. That’s its defence to the defamation case brought by Dominion Voting Systems in the US, in which Lachlan himself sat for deposition a week ago and in which Rupert is soon expected to also give sworn testimony in a closed hearing. If it goes to trial next year as expected, Fox will appeal any adverse ruling in the Dominion matter all the way to the US Supreme Court, where it expects to get a sympathetic hearing from a court dominated by conservatives.

Like father, like son: Rupert and Lachlan Murdoch.Credit: Bloomberg

Clearly Lachlan’s blood is up, but what’s the strategy? A multi-billionaire, Lachlan does not want or need the money that could flow from a successful judgment against Crikey – even if he proves serious harm was done, and damages run to millions. Lachlan’s camp insists he wants an apology and the article pulled down. The last time Lachlan successfully sued for defamation (it was this masthead), he donated the settlement proceeds to charity.

Defeating Crikey could silence an inveterate critic of the Murdoch media and signal widely that Lachlan will fiercely defend his reputation and family. Already there has been a surge of public sympathy for the underdog website which has raised more than $500,000 to fund its legal defence, and presumably that would increase if Lachlan sent Crikey bankrupt.

Let’s assume Lachlan is prepared to take this case as far as it will go. Where does that get him? Lachlan’s case against Crikey shapes as the first test of the new public interest defence under Australia’s recently overhauled national defamation law regime. If it results in a more restrictive interpretation of the provision, it will apply to all media – including the Murdoch media which he controls, and which arguably has the most to lose.

Take just one example: Lachlan’s case criticises Keane and Crikey for failing to contact the Murdochs before accusing them of criminal conspiracy. Opinion writers are not obliged to contact the people they are writing about, and very often don’t.

More importantly, having to do so would be inimical to the business model which supports Murdoch’s own stable of provocative newspaper and pay-TV commentators across the country. Did Andrew Bolt obtain the response of 18 Indigenous people before describing them as “fair-skinned Aborigines” in the 2009 Herald Sun articles and blogs which a judge later found offensive and in breach of the Racial Discrimination Act? That judgment spurred hundreds of articles in the Murdoch press about the need to protect free speech in Australia, and an ultimately fruitless attempt to amend the act by the Abbott government.

Lachlan’s camp says it will be a dispute at trial whether the original Keane article was an opinion piece, and whether the public interest defence applies at all to opinion pieces. But if a judge was to find against Crikey for failing to contact Murdoch, it would rebound on every commentator in the country.

When I was writing The Successor, Murdoch media executives told me a commitment to free speech was Lachlan’s “north star”, and his habitual response to abundant criticism of both Fox and News. Lachlan may or may not agree with everything Andrew Bolt or Peta Credlin say in print or on air, but he will defend their right to say what they think.

The danger for Lachlan, it seems to me, is that even if he wins his case against Crikey, he loses.

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