An article on Crikey.com headlined ‘Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator’, is at the centre of what will proved to be both a contentious and a precedent setting court case.

The case will test a new threshold for defamation and a new defence, added to our defamation laws in most states in late 2021.  

So hard questions to be answered include –  Did the publication cause serious harm to the plaintiff, or is the offence trivial, a matter of offended feeling, spite or misguided understanding of the law, and, second, was  it in the Public Interest that the matter be reported, though potentially damaging.

The case had its first day in court on Friday September 23 ’22 and both parties appear determined that the case will go to trial.

Apart from testing the new defence against defamation, the case has other interesting features.  Patriarch Rupert Murdoch, does not sue for defamation, so the plaintiff, Murdoch Junior, Lachlan, is piloting a new strategy.

No Publicity is Bad Publicity

Rupert has long held that no publicity is bad publicity, a catch cry of media moguls of the past, but he might also hold that to sue in defamation, bring matters to court, might bring to wider attention to an issue you would prefer left undisturbed. Certainly any good defamation lawyer will counsel a client on the consequences of proceeding to court and, especially, of losing the case.

The opinion piece at the centre of the action, by Bernard Keene, was first published in June 22, but withdrawn after correspondence from News Corporation’s solicitor. It was republished in August following further demands from Murdoch Junior for an apology and compensation.  

But then Crikey upped the anti. An open letter in The New York Times, signed by Eric Beecher, chairman of Crikey’s publisher, Private Media, and Crikey editor-in-chief Peter Fray, challenged Murdoch to sue it over the article “so that we can test this important issue of freedom of public interest journalism”. Included was all previous correspondence with Murdoch’s lawyers. 

Lachlan obliged.

Crikey’s defence

Eric Beecher, from Crikey, says the headline ‘clearly refers to Rupert Murdoch’ because the name ‘‘Murdoch’ is used as shorthand by the media and the rest of the world’. In my experience this is true. 

Lachlan is the chief executive and co-chair of Fox Corporation, which has a number of subsidiaries including the Trump-friendly Fox News. 

At present, Lachlan is positioned to be the patriarch on Rupert’s death, with brother James who is on the outer, and sister Elizabeth quietly wait in the wings. The decision to sue may be a move by Lachlan to put his stamp on the empire and stake his claim as patriarch-in-waiting. It may also signal some reassessment by Murdoch Senior of his past reluctance to sue.

This saga is one to watch as the Crikey David takes on the Murdoch Goliath.

For the rest of us

But for the rest of us, the new defamation laws have imposed this new test of significant harm. The courts will have the discretion to throw out cases that are, in essence, trivial. It would also seem to impose a duty on lawyers to counsel clients not to proceed to court if they think the case won’t make it over the serious threshold. 

It also means that, if you already have a bit of a dodgy public reputation, you are likely to have difficulties taking a case to court unless you can demonstrate that very significant harm has been caused to your reputation.

Other changes mean that web site owners will have additional protection from being sued over third party postings on their web sites.  They won’t be free of responsibility but prompt removal of allegedly offending material will count.

TikTok

On another front, TikTok is to be investigated by the Australian government. Its concerns are very similar to US President Trump’s call for US control of data about US users held on TikTok: national security.

TikTok is a hugely popular social media site, especially with the under 30 year olds. It is popular because it offers content that is just right for you, even if you didn’t really know it before.  TikTok can do that because it has built up a detailed profile of your likes and dislikes, wants and needs, as expressed in your viewing habits. The more you view, the more it knows you. Neat, yeah! And it is owned by a Chinese company.

And that’s the security concern: a vast national social data base, in private foreign hands. That concern should apply, of course, irrespective of the nationality of the hands, but China’s recent aggressive and expansionist foreign policy stances have fuelled the security concern.

Knowledge is power

Knowledge is power is not a new idea. An army may march on its stomach as Napoleon Bonaparte may have said, but superior intelligence, knowledge, is vital for victory. Influencing opinion, morale, in an opposing force is  important.

There is another old saying in advertising circles: Of every four dollars spent, three are wasted. The problem is ‘which three’?  But the more you know about the target individuals or groups then the easier it is to tailor messages and reduce advertising wastage. And that is the nub of security concerns. Social media know you, perhaps, better than you know yourself and know how to reach inside your head.

Direct Targeting

There was trial run of this targeting using social media data in the 2016 US presidential campaign. A UK firm, Cambridge Analytica, obtained Facebook data via a US academic. The profiles enabled the Trump campaign to target uncommitted voters to support Trump. President Trump’s victory cannot be ascribed solely to Cambridge Analytica’s work, but it helped, and it demonstrated in the field, the potential of voter profiling and decision shaping.

TikTok is owned by Chinese company ByteDance and in 2020 the app had been downloaded 2 billion times.  Under Article 7 of China’s National Intelligence Law, Chinese companies must allow the Chinese government access to its data, data accumulated on all its users in any country. This was the US concern, and now Australia is acknowledging a similar concern.  

While TikTok says Australian data is stored in Singapore or the USA, the reality is data knows no national boundaries.

Home Affairs Minister Claire O’Neill has asked her department to investigate TikTok, especially its data practices but no deadline to report to the Minister seems set.

And then there is Optus…

It seems there are a couple of things not quite clear in this unfolding saga. There is a lot more to come. But a couple of things stand out.

First, no reports. Yet a torrent of scams in the wake of the hack of the Optus data base, with one 19 year old man arrested in Sydney and charged with online blackmail. Two, Optus did not just require the usual folio of documents to establish the identity of new customers, they kept copies of things like driver’s license, Medicare Cards and passports, for which Optus had absolutely no use, once identity was established. And three, if this event doesn’t run a purgative through the corpus of unnecessary company record keeping nothing will. 

Now, Communications Minister Michelle Rowland wants Optus to share the confidential records with financial institutions and others to enable early detection of attempts to exploit the hacked data. That seems problematic to me: the more that data is shared, surely the more the risk of it being hacked again.  

And still no mention of Optus or any other company with a honey pot of redundant data being obliged to erase it!

Identity theft is real and traumatic and occasionally expensive to the victim. But in relying on the ease that modern technology offers when it comes to paying and receiving money, plus instant communication, are we becoming addicted to the ease, and ignoring the risks?

A start date for the Crikey/Murdoch court trial is nine days from March 27, 2023.

Vincent O’Donnell

Media Researcher and Analyst.