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$155 www.australianbookreview.com.au than those Fox News had agreed to pay Dominion. Damages for non-economic loss in Australia, comprising damage to reputation and injury to feelings, are capped, with the current limit being set at $443,000. This full amount would be awarded only in the most serious case. A successful plaintiff can also seek aggravated damages, for any additional hurt or humiliation they suffered, so long as they can prove that the defendant’s conduct was improper, unjustifiable, or lacking in bona fides. Exemplary (or punitive) damages cannot be awarded for defamation in Australia. Damages for economic loss might be claimed in Australia and are uncapped, but any amount sought and awarded would have been dwarfed by the amount received by Dominion.

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Having settled the defamation case in the United States with Dominion in order to minimise the reputational harm done by the revelations in the pre-trial disclosure and to avoid crossexamination, it was difficult for Lachlan Murdoch to continue his defamation case against Crikey in Australia. This was particularly because Crikey was keen to rely on those revelations in its defence. It would have defeated the purpose of the settlement of the Dominion proceedings to continue with the Crikey proceedings.

There is another way in which the pursuit of the Crikey proceedings could have been self-defeating for the Murdochs’ media interests. A central defence relied upon by Crikey was the new public interest defence to defamation. This defence was one of the key reforms introduced across Australia (except for Western Australia and the Northern Territory) in 2021 in the first stage of the reforms to the national, uniform defamation laws. Along with the introduction of a requirement that the plaintiff prove serious harm to reputation, the public interest defence was intended to make Australia’s defamation laws less plaintiff-friendly. To win his case against Crikey, Lachlan Murdoch would have had to defeat Crikey’s public interest defence. If successful, he would be setting a precedent, which, while it might have secured him substantial damages in his own case, would also be used against mass media outlets in Australia in every other case in the future. On one view, it might be fairly said that it was not in the interests of Murdoch’s media outlets for Lachlan Murdoch to have won his case against Crikey.

With Lachlan Murdoch discontinuing his defamation proceeding, Crikey declared victory for public interest journalism. The determination of the actual operation of the new public interest defence to defamation has been deferred. The case then is not important for the precedent it establishes, because it establishes none. Like Christian Porter’s defamation proceedings against the ABC, Lachlan Murdoch’s case against Crikey demonstrates that strategy and commercial realities are just as important in high-stakes defamation cases as strict legalities. Ultimately, in these kinds of stand-offs, it comes down to who blinks first. g

David Rolph is a Professor at the University of Sydney Faculty of Law and the author of several books, including Reputation, Celebrity and Defamation Law (2008) and Defamation Law (2015).

This article is one of a series of ABR commentaries on cultural and political subjects being funded by the Copyright Agency’s Cultural Fund.