Life on the West Island - David v Goliath

Last week saw the breaking of two of the largest mass media stories in years, both internationally and on the West Island. So it was curious that Sunday’s edition of Insiders, the ABC’s flagship current affairs programme, made no mention of these in its usual discussion between senior journalists. Then again, both stories involved Rupert Murdoch and his family, the immensely powerful owners of News Corporation, Fox News and Sky News. And three of the four journalists on Insiders are current or past employees of News Corporation. The two bombshell stories both arose from defamation cases involving News Corporation and the Murdoch family, and there seems to be a connection between them.

Firstly, Dominion Voting Systems lodged a defamation action against Fox News, seeking over $2 billion in damages over that network’s false claims that the company’s voting machines had been programmed to steal the 2020 US election from Donald Trump. Fox had vowed to fight the case and to prove beyond doubt that the election had indeed been stolen. But in documents presented to the court, it became clear that Fox and its on-air presenters knew that the claims were false, yet they persisted in repeating them to the three million rusted-on Trump supporters who base their political loyalties on the “news” and opinions repeated ad nauseum on Fox News.

The killer blow for the Murdoch family was the release of thousands of pages of texts and emails making clear that they knew Fox was aware that the claims of election fraud were false. For instance, in mid-January 2019, Rupert Murdoch wrote:

Trump insisting on the election being stolen and convincing 25 percent of Americans was a huge disservice to the country. Pretty much a crime. Inevitable it blew up Jan. 6th. Best we don’t mention his name unless essential and certainly don’t support him.

Multiple American media sources also reported that in pre-trial depositions under oath, Rupert Murdoch confirmed the suggestion by a Dominion lawyer that Fox was trying to straddle the line between spewing conspiracy theories on one hand, yet calling out the fact that they are actually false on the other.

On the day that the defamation trial was due to start, with Rupert Murdoch among the star witnesses, the parties reached an out-of-court settlement under which Dominion received more than $1 billion, which The New York Times said was one of the largest ever in a defamation case and was the latest extraordinary twist in a case that has been full of remarkable disclosures that exposed the inner workings of the most powerful voice in conservative news.

While Fox refused to apologise on-air for its lies, it issued a statement acknowledging that the court had found certain assertions about Dominion to be false. Dominion’s lawyers claimed that the settlement was a victory for freedom of the press and a ringing endorsement for truth and for democracy.

The settlement of the Dominion matter had an almost immediate consequence on another case on the West Island, in which Lachlan Murdoch had sued online media site Crikey for defamation over an article by journalist Bernard Keane published in June 2022 under the headline Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator.

The evidence brought forward in the Dominion case would almost certainly have damaged the Murdoch’s defamation action, which was shaping as a test case on the newly-instituted “public interest” test in West Island defamation law. Its withdrawal was largely seen as a victory for Crikey over the Murdochs – another win for David over Goliath!

News Corporation was seeking massive damages which would almost certainly have bankrupted the small media operator. The defamation case had gained worldwide attention, causing a huge spike in Crikey subscribers and GoFundMe donations of almost $600,000 to a legal defence fund. Murdoch is now likely to pay Crikey’s legal fees and the defence fund will be gifted to charity.

Crikey journalist Bernard Keane, a co-defendant in the defamation action, wasted no time in going to print with a message for his would-be persecutors:

Memo for Mr Murdoch — I’ve never written to direction at Crikey, and have never been asked to. I write what the evidence leads me to conclude, rightly or wrongly, even if it offends readers because I’m not supporting their favourite political party or cause. I intend to keep doing that.

But it’s disappointing that we won’t have the opportunity to pursue Murdoch in the witness box, nor to establish what would hopefully be a positive precedent of a successful use of the public interest defence. That remains untested. But I’ve been an armchair supporter of free speech and a free press for many years, so I couldn’t complain about finally being called into the fight.

And in the end, my stress would have been trivial compared to the price being paid by so many others — not just journalists — who have sought or continue to seek to hold to account the powerful. Annika Smethurst. Sam Clark and Dan Oakes at the ABC. Nick McKenzie at Nine. Brittany Higgins. Richard Boyle. David McBride. Bernard Collaery and Witness K. Most of all, Julian Assange. Australians who have paid, or continue to pay, a real and sometimes massive price for doing what’s right.

But Western Australian academic Michael Douglas saw a more Machiavellian motive for the withdrawal of the defamation action:

Say the case continued, and Lachlan Murdoch won. This would mean the Crikey respondents failed in their reliance on the statutory defence of “publication of matter in the public interest”. The resulting judgment could set a precedent undermining the value of the new defence. It is in Lachlan Murdoch’s ultimate interest that the defence remains strong: it will protect News Corp rags in publishing defamatory articles, which they are prone to do. Laying down his weapons now avoids that scenario.

Score one for David – but perhaps Goliath is yet to lay down his weapons...