Fox News boss Lachlan Murdoch has accidentally denied that former U.S. President Donald Trump lost the 2020 election in documents submitted to a defamation lawsuit, an Australian court has heard.
Over the last month, media executives and legal experts have watched on as the Australian news site, Crikey, challenged Fox News chief executive, Lachlan Murdoch, into a defamation battle over an op-Ed that claimed the Murdochs contributed to the Jan. 6 Capitol riot in Washington D.C.
On Friday, the case had its first hearing in the Federal Court of Australia, where each side moved to iron out contentions with the other’s allegations and defences.
As part of the hearing, which was mostly administrative in nature, Crikey’s lawyer Michael Hodge KC argued that claims made in Murdoch’s reply to Crikey’s defence could be read as election denial.
“As presently pleaded, Lachlan Murdoch denies that Joseph Biden won the 2020 [U.S.] presidential election, and that Donald Trump lost it,” Hodge told the court.
“It wasn’t the intention of [Murdoch’s lawyer] in settling the pleading, and it’s not, apparently, Mr Murdoch’s intention to deny that Joseph Biden was the President of the United States—that’s an unfortunate consequence of the way it’s been pleaded.”
It was one of a smattering of barbs traded between the two legal teams, which are looking likely to go head-to-head at a high-profile trial in April next year.
The article at the centre of the suit, which was written by Bernard Keane and first published on June 29, claimed links between the Murdoch family and the Jan. 6 Capitol riot. It likened the media moguls’ role in the assault that day to the role former U.S. president, Richard Nixon, played in Watergate, and went on to claim the Murdochs contributed to the attacks seen in Washington D.C. that day.
But, really, the whole suit boils down to the headline and one excerpt:
“If Trump ends up in the dock for a variety of crimes committed as president, as he should be, not all his co-conspirators will be there with him. Nixon was famously the “unindicted co-conspirator” in Watergate,” the story read. “The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.”
The article’s headline was: “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator”.
The day after the June 29 article was published, Lachlan Murdoch’s lawyer demanded Crikey pull the article down and post an apology that would stay up for 14 days.
Crikey replied to that with an offer to publish a clarifying statement, but stood firm on denying an apology. The site unpublished the story within minutes, before republishing the story on August 15.
Not long after that, Crikey published all of its correspondence with Murdoch’s lawyer over the dispute, before eventually taking out full-page ads in The New York Times and the Canberra Times, where they challenged Murdoch to sue them in an open letter.
Murdoch obliged, and is now suing Crikey’s publisher, Private Media; its political editor, Bernard Keane; and its editor-in-chief, Peter Fray.
Murdoch’s counsel at Friday’s hearing, Sue Chrysanthou KC, spent many of her opening words bemoaning Crikey’s behaviour in the lead up to the case’s first hearing, which she suggested would only continue to bring Murdoch harm, after Crikey leased out a sweep of billboards in Melbourne to rally support.
She also took issue with the way the publisher characterised its defence in a recent “video from the CEO of Private Media”, Crikey’s parent company, that tried to “explain how [its] defence works”, and repeated accusations that the company is running the case to boost subscriptions and build its international profile.
Crikey submitted its defence to the court on Tuesday, but it only became available to the public later in the week. In it, Crikey mounted a new public interest defence—a reform introduced to Australian defamation law in July—along with implied freedom of political communication and a failure to accept reasonable offer of amends.
Crikey’s defence argued that nobody would have read Keane’s words “literally”, or that they would have believed that the “Murdochs were guilty of criminal conspiracy or treason under US law”. The story was “self-evidently hyperbolic,” Crikey leadership argued.
The publisher also argued that Fox News repeatedly cast doubt on the outcome of the 2020 Presidential Election on-air on various occasions “from around 7 November”.
It became another point of contention for Murdoch’s legal team on Friday.
Chrysanthou argued that, in order for Crikey to “put [it] forward as fact”, they would have to submit the “particulars” of all examples of “hosts and guests of Fox News repeatedly cast[ing] doubt on the outcome of the 2020 Presidential Election and directly or indirectly promoted on air” within seven days.
In a statement on Thursday, Private Media CEO Will Hayward said he and his team plan to remain silent, now hearings are underway.
“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,” Hayward said.
“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.”
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