Lawyers for Crikey are demanding the media mogul Lachlan Murdoch hand over documentary evidence showing he repudiated falsehoods aired on Fox News that Donald Trump lost the election due to electoral fraud, the federal court has heard.
Murdoch is suing Private Media, the publisher of Crikey, over an article published earlier this year that described the Murdoch family as an “unindicted co-conspirator” in the attack on the US Capitol.
The trial is still three months away, but the parties are currently engaged in a preliminary battle over the disclosure of material and interrogatories – or formal questions – each side has posed one another.
Crikey has alleged in court that neither Lachlan Murdoch nor any member of the Murdoch family have publicly repudiated claims propagated on Fox News alleging electoral fraud in the 2020 US election.
Private Media’s barrister, Clarissa Amato, said Murdoch’s defence had so far produced no evidence showing that he did repudiate such claims. It is now seeking to put the question directly to Murdoch and ask him to show documentary evidence of having repudiated comments about electoral fraud made on Fox News.
“What [the interrogatory] seeks to do is ask Mr Murdoch the question directly, either he did, or he didn’t,” she said.
“And if he did publicly repudiate it, then we will ask for any documents that evidences that public repudiation.”
But Murdoch’s barrister, Sue Chrysanthou SC, resisted the interrogatory, saying it was no longer relevant.
She said the matter was only relevant to determining whether the piece raised an issue of public interest. Murdoch had already conceded that it had.
She also said the publisher’s interrogatories would require Murdoch to watch Fox News, a 24-hour channel, for the two-and-a-half years that have passed since the election.
“My client is asked to look at Fox News for a two-and-a-half year period – your honour knows that it is 24 hours a day – and then assess each of those programs, and decide whether they come within the characterisation set out in the interrogatory,” she said.
“That’s what’s sought.”
Murdoch’s lawyers, meanwhile, are continuing to press for more material about a marketing campaign run by Crikey. They have already discovered internal documents showing Crikey used the campaign to leverage the battle with Murdoch to attract new readers and gain subscribers.
Chrysanthou told the court that Crikey had painted itself as the victim in a “David and Goliath battle” while running a GoFundMe campaign to raise money for itself.
At the same time, she said, the publisher had failed to tell its readers that it had defamation insurance. The court heard Crikey is now resisting attempts to give Murdoch’s lawyers details of its defamation insurance.
“Part of the marketing campaign specifically … was to portray Crikey in a David and Goliath dispute – this is all in the marketing document – with Crikey being the victim of the media mogul,” she said. “And we say that the GoFundMe campaign was part of that and, in fact, the respondents are insured for defamation claims.
“They haven’t disclosed that to the public, and we have pleaded they did so to engender sympathy and further its marketing scheme.”
But Crikey’s lawyers said they had already admitted that the marketing campaign existed, and that there “has to be a limit” on how much material was provided to Murdoch’s lawyers.
“There has to be a limit,” Amato said. “There just has to be, at some point.”
Murdoch is alleging that the marketing campaign was being contemplated while the publisher was still offering to make amends to Murdoch, the court heard. Making an offer of amends can be a defence to defamation if the offer is reasonable but is not accepted, the court heard.
Justice Michael Wigney has ordered the case go to mediation, before a registrar, later this month.
The court will then reconvene for another case management hearing prior to Christmas.