The Norman Swan of Law Dabbling

18 Responses to The Norman Swan of Law Dabbling

1. C.L. says:

   11 December, 2022 at 1:59 pm

   Sat 10 Dec 2022

   For Australian media, this case is important – it asks whether anyone is free to publish in the public interest a hyperbolic remark about a wealthy media baron

   The newspaper buccaneer William Randolph Hearst explained to the father of Douglas Fairbanks Jr that he liked owning newspapers, “because you can crush a man with journalism”.

   And when it came to Orson Welles and his film Citizen Kane, quite a lot of crushing went on.

   Charles Foster Kane was Welles’ creation – an imagined portrayal of Hearst and his life at Xanadu, AKA San Simeon, with Marion Davies.

   It was a lacerating attack on the newspaper baron’s rise to vast wealth and influence – so much so that Hearst and his allies set about destroying the career of the brilliantly talented Welles.

   Hearst’s yellow press columnists attacked the film and Welles’ name was damned in print, even though Citizen Kane was and is considered among the greatest films ever made.

   Hearst was the son of a wealthy mine owner and began with one small paper in San Francisco which he parlayed into a national chain of thunderers with 96-point front-page headlines.

   He owned eight vast homes, packed with art and antiques, acquired the company of numerous women, and was an inveterate meddler in politics.

   Some eerie similarities come to mind.

   Welles never recovered professionally from the attack. Louis B. Mayer tried to buy the film in order to burn the negative. In any event, soon after it was released it was retired to RKO’s vault.

   The Murdoch media business is the closest thing we have approximating the Hearst empire, which bestrode the narrow world like a Colossus – titans with resources to crush their critics.

   After all, that was what defamation law was designed to do – to give the wealthy a legal mechanism to stomp on pipsqueaks.

   Scandalum magnatum took hold during the reign of Richard II and was purpose built to provide remedies for dignitaries with thin skins.

   Which gets us to Lachlan Murdoch v Crikey, the upstart news and commentary site that snipped at the heel of the heir to the throne and is now heading to a stage at the federal court for a full-blown production in March.

   For the media this is as important a case as Ben Roberts-Smith v Fairfax – although for different reasons. Roberts-Smith was about newspapers fighting to defend their journalism about alleged war crimes in Afghanistan, allegations strenuously denied by Roberts-Smith.

   The Murdoch case questions whether anyone is free to publish in the public interest a hyperbolic remark about an extraordinarily wealthy proprietor of an inflammatory and divisive media operation.

   The focus is the claim that Murdoch is an unindicted co-conspirator of Trump’s attempted coup. It appeared in the headline and at the end of a Crikey article in June reporting White House aide Cassidy Hutchinson’s evidence to the 6 January select committee into the lynch mob that stormed the Capitol.

   This defamation case has wider implications and implicitly poses a pressing question: what sort of country are we?

   In the UK or the US, such a claim brought by Lachlan Murdoch would struggle to make headway.

   In Australia, it gets the red carpet with multiple days of case management, and disputation over pleadings and discovery.

   At this stage of the jousting, Murdoch’s application to toss out great chunks of Crikey’s case has been rejected by Justice Michael Wigney – which doesn’t mean it will be successful at trial, but at least it goes to trial.

   The new defence available for publishing matters of public interest is untested and tricky. Murdoch’s lawyer claimed the media had been “sold a pup”, that the defence was worthless and there’s “not much to see here”.

   This must have been a puzzle to the journalists and lawyers at News Corp, who had pressed for such a defence in the 2021 round of defamation reforms.

   Wigney thought there was plenty to see here, in the process pointing out the defence has three layers. There’s an objective question – is an allegation about a connection between Fox News’ apparent election denialism and the uprising at the Capitol a matter of public interest?

   If it is, did the defendant publisher believe it is in the public interest? This involves an exploration of the journalist’s and the publisher’s state of mind – a subjective exercise.

   Then the last bit is whether that belief was reasonable. Needless to say, there are all sorts of tripwires here, accompanied by a sad history of judges considering the most meagre journalistic lapse to be unreasonable.

   Importantly, Wigney did remind everyone that the “truth or falsity” of the article is not a relevant consideration of this defence.

   There’s also a fallback position – that the matter was published concerning the implied constitutional freedom of communication about government or political matters (the Lange defence).

   The publisher has given notice that its case raises a constitutional issue as to whether Lange requires reasonableness to be established. This could see the litigation mushroom with commonwealth and state government involvement at the trial.

   An amended defence has been filed and it presses with points such as: that Murdoch has never publicly repudiated claims that the election was stolen from Trump; that no one would believe that Murdoch was a criminal conspirator or guilty of treason; that no serious harm has been done to Murdoch; that he has a bad reputation as CEO of Fox Corporation.

   We also have a new reply from Murdoch on the file. It says Crikey was motivated by malice; that the publication failed to reach proper journalistic standards and was unreasonable; that the conduct of the publisher was part of a hypocritical and cynical scheme to boost subscriptions, gain publicity and engender sympathy.

   Further, it is claimed the implied constitutional defence only applies to government and political matters in Australia, not the United States.

   There were other interesting revelations: that Crikey paid “up to $100,000” for an advertisement in the New York Times challenging Murdoch to sue; prior to publication of the article, Crikey’s revenue was $3m from subscriptions; that the defendant company has defamation insurance; and the shareholders of the publishing company include wealthy individuals, some with assets of tens of millions of dollars.

   It is also asserted that Crikey engaged a brand management company, Populares, seeking to turn the dispute with Murdoch into a marketing opportunity.

   For the trial, Murdoch’s lawyers foreshadow calling an expert to give evidence about promoted tweets and the “grapevine effect”.

   Lachlan Murdoch has indicated he will give evidence from the witness box. But first, there’s to be a mediation in the week before Christmas and another round of case management.

   If the mediation fails, then the fractured state of American democracy and Fox’s role in amplifying it will be played out in an Australian court.

   Interesting. Crikey will be arguing that nobody would believe its claim. It was just Trump-like hyperbole. Also known as misinformation or even bullshit.
2. NFA says:

   11 December, 2022 at 2:16 pm

   lol
3. Lee says:

   11 December, 2022 at 2:42 pm

   My instinct would say Pell got a fair run.

   Suuurre he did.

   The witness came out with a credible, consistent story…

   Some might say that workshopped and full of incredible holes and inconsistencies come to mind.
4. Rosie says:

   11 December, 2022 at 2:54 pm

   What the HCA said.
5. Pommy Al says:

   11 December, 2022 at 3:08 pm

   Where do you end up when the truth or falsity is not relevant.
   Give me a fucking break.
6. Cassie of Sydney says:

   11 December, 2022 at 3:40 pm

   “My instinct would say Pell got a fair run. He had the best barrister in town – a very flamboyant, theatrical and ferocious character – a fair judge and a straight prosecutor. The witness came out with a credible, consistent story…”

   I need a bucket, a big bucket.
7. NFA says:

   11 December, 2022 at 4:08 pm

   Where’s the outrage? Nowhere to be found.
8. C.L. says:

   11 December, 2022 at 4:45 pm

   Great piece by Kimball.
   I note that The Australian, like the mastheads he mentions, also refuses to cover this story.
9. Fat Tony says:

   11 December, 2022 at 5:30 pm

   Rosie says:
   3 November, 2022 at 9:23 pm
   …I’m also getting sick of being stalked around the internet by you.

   Rosie – I’ve asked you a couple of times now on this blog for proof that I have been stalking you around the internet. You have not responded.

   You have made this serious accusation – so either now apologise or provide proof.
10. Gerry Jackson says:

    11 December, 2022 at 7:28 pm

    The coup was against Trump, not the corrupt senile Biden.
11. Franx says:

    12 December, 2022 at 1:26 am

    Ackland may have called his responses ‘instinct’, yet the explanations for his instinct were not at all about instinct but about unanalysed prejudice.
    For, and ultimately:
    1. The best barrister in town was left incredulous at the level of hysteria which left no room for reasoned deliberations.
    2. With regard to the judge, the extent of his fairness was revealed when in his sentencing he fell to conjecturing as to Pell’s inner thoughts: ‘I think you thought … .’ Mind reading as justice.
    3. Concerning the prosecution: the bench of the seven justices of the HCA found it fit to refer to the prosecution as having intentions which were ‘specious’. Quite some assessment, that, of the OPP being not quite ‘ straight’ nor having integrity.
    4. As for the complainant, consistency in the evidence was not a problem, for in fact it was the very inconsistencies in the evidence which counted and gave an aura of ‘authenticity’ involving a ‘witness to the truth’ – at least according to the majority judges in the Victorian appeal.
    Genuine instinct could only resile from such travesty.
12. Entropy says:

    12 December, 2022 at 5:49 am

    An amended defence has been filed and it presses with points such as: that Murdoch has never publicly repudiated claims that the election was stolen from Trump;

    WTF. I mean, WTF!
    That is meant to be a reasonable line of defense?
13. Buccaneer says:

    12 December, 2022 at 6:57 am

    When has Crikey ever run a story that doesn’t project the bias of the left? The Murdochs make a point of employing journalists of the left.
14. Not Trampis says:

    12 December, 2022 at 7:55 am

    I argued for Pell’s innocence purely on what probabilities told you about the timelines about when the crimes were alleged to have occurred.
    however a jury convicted him. He did have a very good counsel defending him in court.
    The major problem Pell had was he is not a likable person and clearly they disbelieved his defence.
    Perhaps his counsel was overpaid.
15. Boambee John says:

    12 December, 2022 at 8:37 am

    Non Mentis

    The major problem Pell had was a very vicious media pack demanding a sacrificial goat for the crimes of others. Pell’s alleged unlikability, and his strict adherence to a Catholic doctrine despised by many so-called “progressives”, made him a suitable target.

    The actual timelines, as you argued, were simply fanciful, even after the complainant had been given several opportunities to fine-tune them.
16. Chris M says:

    12 December, 2022 at 8:40 am

    Like Lindy Chamberlain not likable? Or perhaps advised by lawyers to look sour and emotionless. Like them.
17. Christine says:

    12 December, 2022 at 11:40 am

    The Cardinal once wrote that the world would soon be drowning in Compassion.
    That’s true. But it didn’t make him “likable”.

    “likable” is necessary for a sympathetic media? I doubt it would have made much difference in his case.
    We could do with more serious/stern/stoic men.
18. Real Deal says:

    12 December, 2022 at 4:14 pm

    Ackland has been dining out on his “Cash for Comment” success from 1999 ever since. Don McClean has been dining out on American Pie for 50 years. Ackland is a one hit wonder.