Australia’s public interest defense must be tested

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Under the new defense of public interestswhich started in NSW in July last year and not yet tested, Private Media must prove that the article concerned a matter of public interest and it “reasonably believed that publication of the matter was in the public interest”.

The court must take into account all the circumstances and may examine “whether the defendant has made a reasonable attempt to obtain and publish an answer”. The case can provide guidance on how the defense works in connection with opinion writing rather than investigative reporting.

In his written defense Crikey says Keane believed that Fox News “played a significant role in reinforcing the division that Trump had caused” after his 2020 election defeat “and believed that any discussion on January 6 would be ruthlessly incomplete without an understanding of the media environment in the United States “.

The lawsuit was brought against Private Media, led by Eric Beecher, Keane and Crikey editor-in-chief Peter Fray. The defense says neither Fray nor Keane considered it necessary to contact Murdoch for comment because he was not a target of the article and it was “an opinion piece, not news reporting”.

Private Media says it reasonably believed the article was in the public interest. Fray and Keane believed the references to the Murdochs were “obviously hyperbolic” and “no one would read the words literally as suggesting the Murdochs were guilty of criminal conspiracy”, the defense says.

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Crikey also seeks to rely on a specific variant of an older public interest defense known as qualified privilege that includes the implied constitutional freedom of communication about government and political affairs. It is unclear whether this defense, if available, would provide greater protection than the new public interest defense.

In a response filed in court, Murdoch’s lawyers deny that the article relates to a matter of public interest. They accuse Crikey to seek to “increase subscriptions, gain publicity and/or create public sympathy”.

In a statement on Wednesday, Private Media chief executive Will Hayward said: “It is risky to take on this fight 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 against our company and our journalists.”

Hayward said that “from here we have to pretty much turn the matter over to the courts”.

“While other media outlets are free to criticize the process and offer all sorts of opinions on the issues at stake, we intend to remain largely silent.”

Crikey advertising on an electronic billboard on Kings Way in Melbourne.

Crikey advertising on an electronic billboard on Kings Way in Melbourne.Credit:Simon Schluter

Private Media has been running digital billboards spruiking Crikey in Melbourne since Monday and an ad ran Australian Financial Review on Wednesday.

The ads included the taglines “mogul-free journalism”, “fearless news and views daily” and “not for the faint-hearted”. Private Media’s head of growth Kevin Cooper said money for the campaign was drawn from its existing advertising budget and not from crowdsourced funds for the lawsuit.

“Advertising is tied back to what Crikey is and what it stands for … the whole campaign is about showing people how we hold the rich and powerful accountable, which has been the mantra for many years,” Cooper said.

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The article in the middle of the case was removed from Crikey‘s website when Murdoch’s lawyer wrote to the news outlet on June 29. It was re-released on 15 August.

Murdoch’s lawyers claim in a statement of claim that the article was republished under the “pretense” that it was a response to “recent media reports” and accuse Crikey of contacting Sydney Morning Herald before the latter on 14 August published an article on legal letters between the parties. Crikey denies this.

Actions to file the case had already begun on August 22 then Crikey published months of legal correspondence between it and Murdoch’s lawyers and submitted an open letter New York Times explains his desire to defend the case in court. The case was officially filed on August 23.

Crikey claims that Murdoch was not identified by the article, which did not name him personally, until it was republished in conjunction with Murdoch’s legal letters on August 15.

The parties will appear in court for the first time on Friday for a preliminary hearing.

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