By crikey! Murdoch and a minnow flirting with the Streisand effect

Barrister

In 2003,environmental activist Kenneth Adelman posted an aerial photograph on the website of the California Coastal Records Project showing erosion along a spectacular part of the Californian coastline. Visible on the photo – one of more than 12,000 that had been posted to the site – was an impressive house that happened to belong to the singer and actress Barbra Streisand.

Streisand sued for an invasion of privacy,seeking to have the photo removed and damages of $10 million. Streisand lost,and not only in the courtroom. Her legal action drew attention to what had been,until then,an obscure photo downloaded only a handful of times. As a result of the lawsuit,it was reportedly viewed by more than half a million people. “The Streisand effect” now refers to Streisand’s own goal – bringing litigation that achieves the opposite of its intended effect.

The photo of Barbra Streisand’s Malibu mansion in California.

The photo of Barbra Streisand’s Malibu mansion in California.Alamy

The Streisand effect is a well-known phenomenon in defamation law. There are many recent examples in this country,most of them in NSW,of plaintiffs suing to vindicate their reputations,only to find that the cure is worse than the disease – even when they win.

Which brings us to the curious,but somewhat more complicated,case ofLachlan Murdoch v the publisher of the Crikey website.

On June 29,Crikey published a piece by Bernard Keane titled “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator”. Keane argued that former US president Donald Trump had not only subverted the outcome of the 2020 presidential election,but also incited and supported the insurrection on the Capitol building on January 6.

Keane said that Trump had enjoyed the support of “the world’s most powerful media company” and ended with the sentence,“The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.”

News Corporation co-chairman Lachlan Murdoch.

News Corporation co-chairman Lachlan Murdoch.Getty

Lachlan Murdoch’s lawyers wrote a letter of complaint the following day,asserting that the article conveyed 14 defamatory imputations about him. A week later,Crikey pulled the article down as a “goodwill gesture”. The gesture did not resolve the matter. Increasingly hostile correspondence was exchanged. On August 15,Crikey republished the original piece,with an explanatory note,and effectively goaded Murdoch to sue,an invitation he took up last week.

Lachlan Murdoch is a very big fish. He co-chairs News Corp,which has for decades mounted principled arguments to the effect that Australia’s defamation laws inhibit freedom of expression and the public’s right to know. His action against Crikey would stand little prospect of success under the laws of the United States,where the First Amendment protects the robust expression of opinions about public figures.

Murdoch could have engaged with Crikey in the marketplace of ideas,and explained why Keane’s conclusion was ignorant,wrong and offensive. Or,upon Crikey pulling down the article,he could have left it at that. Instead,Murdoch has chosen,as is his right,to sue for defamation. Keane’s article,like Kenneth Adelman’s photograph,has now reached a much larger audience.

Murdoch’s case will face hurdles. He will have to persuade the court that Keane’s article was about him,when it did not single him out by name. He will have to establish that the article caused or was likely to cause significant damage to his reputation,and counter the argument that his reputation is unlikely to be materially affected by an article published on a niche website.

He will have to establish that ordinary readers of the piece will have understood it to contain at least some of the pretty hyperbolic imputations formulated by his legal team. And because damages for non-economic loss in defamation actions are capped at a maximum of $443,000,an amount which is only to be awarded in “a most serious case”,the cost of the exercise will almost certainly exceed any damages he might be awarded if he wins.

An open-and-shut case,then,of the Streisand effect? Hardly.

Crikey’s conduct is at least as curious and has raised the stakes of this unusual dispute. Provoking a well-resourced public figure into suing a relative minnow of a publishing house under Australia’s notoriously plaintiff-friendly defamation laws was a high-risk strategy by any measure. Perhaps the assumption was that by drawing attention to the dispute,Murdoch would somehow be discouraged from suing.

If so,the strategy has badly backfired. Having been sued,Crikey is now seeking to make a virtue of it,by defining itself as David in a battle against Goliath,and leveraging that status in a play for subscribers and donations. That will further muddy the issues that will be exposed if the case proceeds to trial and hand Murdoch ammunition with which to question Crikey’s motives.

It will no doubt be argued that if any goodwill was involved in Crikey’s original gesture of removing Keane’s article,it was well and truly undone by then republishing it and dramatically expanding its original reach. Crikey may seek to test a new defence to defamation law that is intended to protect publishers who reasonably believe that their story is in the public interest. But the new defence is primarily directed at investigative public interest journalism. Keane’s article is essentially an opinion piece. It is not difficult to imagine better test cases for the new defence than this one. And the nature of test cases is that they tend to be expensive and their outcomes are unpredictable.

It is far too early to prognosticate as to the outcome. One thing,however,is clear:whatever the result,both parties will have plenty of time to reflect upon the Streisand effect – the wisdom,in Murdoch’s case,of suing;and in Crikey’s case,of encouraging him to do so.

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Dr Matt Collins AM QC is a Melbourne barrister. He represented Nine in the action brought by former Treasurer Joe Hockey,and Rebel Wilson in her action against Bauer Media.

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