Welcome to a Wednesday edition of Unmade.

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It’s the last day of winter today. And there’s never been a season like it for high profile legal cases - criminal and civil - involving the media.

For any publishing company that aspires to do investigative journalism or write about contested topics, legal representation is becoming a cost of doing business, in both defending reporting and as bystanders in criminal proceedings.

Last month, the epic defamation case by former soldier (and Seven West Queensland boss) Ben Roberts-Smith against The Age, the Sydney Morning Herald, and the Canberra Times came to a close. With each side’s costs amounting to something like $12m, and the potential of damages on top, we’re waiting for Justice Anthony Besanko’s verdict on whether the newspapers defamed BRS be alleging that he was a war criminal and murderer.

It’s a crucial test of where the courts sit in balancing media’s right to responsibly report on matters of public interest against individuals’ rights to protect their reputation.

Another individual seeking to use Australian laws to do that is Lachlan Murdoch, co-chairman of News Corp and, more relevantly to this example, executive chairman and CEO of Fox Corporation, parent company of Fox News in the US.

Last week, Murdoch commenced defamation proceedings against Crikey over an opinion piece labelling the Murdoch family as “unindicted co-conspirator” in the January 6 US capitol insurrection because of the role played by Fox News.

If it goes all the way to court (and that’s unlikely), the case will be a test of the right or otherwise to express hyperbole when writing commentary. As a side issue, the case has already become a rallying point (and subscriptions driver) for Crikey supporters opposed to News Corp.

Another media skirmish going legal last week was that of former NSW premier John Barilaro, who was charged with assault and malicious damage following an altercation with a camera operator. Previously, Barilaro used civil law to win $715,000 in damages from YouTube over videos published by comedian Jordan Shanks, and there may yet be further reverberations in that case.

Yesterday was a busy day at the intersection between media and law.

In the morning, broadcaster Erin Molan, who co-presents 2Day FM’s Sydney breakfast show and also appears on Sky News, won $150,000 in damages from Daily Mail in the Federal Court. While she was in her previous gig on 2GB’s Continuous Call Team, the publication had suggested she been racist in bantering about the pronunciation of Pacific islanders’ names.

During the discovery process, the Daily Mail was forced to disclose an email from editor Barclay Crawford to a journalist saying “Let’s rip into this Sheila”.

In that aspect it was reminiscent of Joe Hockey’s 2015 defamation case against the Sydney Morning Herald’s “Treasurer for sale” article. Then editor-in-chief Darren Goodsir found himself on the stand being asked to justify whether internal emails saying “I want to have this nailed to the cross in more ways than one” was a reference to crucifying the politician.

Internal newsroom conversations rarely look good when forensically explored in court.

The Teacher’s Conviction

But there was a bigger legal moment yesterday, with Chris Dawson finally being found guilty of murdering his wife Lynette 40 years ago.

This was, of course the story told in Hedley Thomas’s award-winning The Teacher’s Pet podcast.

The findings by NSW Supreme Court Justice Ian Harrison, which took him more than five hours to read, were live streamed. There was an extraordinary level of public interest. For most of the stream, the numbers sat above 7000 people watching, rising for a while to more than 17,000. There would be few, if any occasions, when so many people have watched an Australian court verdict.

That raises its own complications. Some of the details shared by Justice Harrison in the stream are covered by reporting restrictions as a result the age at the time of some of those involved. Yet all those who watched live heard the unexpurgated version. If live streams of court proceedings become a new norm, then that will need to be addressed.

But the major issue was that the course of the proceedings was altered because of the existence of the podcast.

Four-and-a-bit years on, it’s worth remembering just what a big deal The Teacher’s Pet was at the time it launched. It was by no means Australia’s first podcast - they’d been around in various formats for the best part of a decade.

But it was one of the first times in Australia that a great investigative journalist - which Hedley Thomas is - had focused their attention on the medium.

Compared to the production levels expected now, The Teacher’s Pet would not stand up. Thomas was a print journo learning audio techniques as he went. There were a few too many bad recordings of phone interviews grabbed on the run. And he was yet to adjust to the story arc demanded in podcasts compared to long (or short) form written journalism. He needed a script editor. But for time, that all added to the raw authenticity of the evolving story of his investigation.

And of course, this was all before it was possible to monetise that sort of project.

I imagine The Teacher’s Pet was one of the least lucrative things The Australian did in 2018. I doubt the sponsorship - Harvey Norman if I recall correctly - would even have covered Thomas’s salary. And the technology didn’t exist then to put the podcast behind a subscriber paywall.

However, it was a huge reputation builder for The Australian, and News Corp more widely. It won Walkleys, and was a hit across the world until it had to be taken down while the trial was on foot.

The follow up podcast The Teacher’s Trial became the authority on this year’s proceedings.

And The Teacher’s Pet loomed over those proceedings. Dawson’s legal defence team used it to argue that his chances of a fair trial had been prejudiced. That was why it ended up being a trial in front of a judge instead of a jury.

During yesterday’s proceedings, Justice Harrison gave the impression that he wasn’t much of a fan. For some witnesses, the usefulness of their evidence was “neutralised” by the process of having participated in the podcast.

And yet, without The Teacher’s Pet, there might never have been a trial at all. Thomas found new witnesses and rediscovered lost evidence.

Admittedly, by the time he was researching the podcast, there was already another police cold case investigation under way so perhaps justice would have eventually caught up with Dawson anyhow. However, the authorities had missed a number of previous opportunities to prosecute.

We won’t know for sure, but the public outrage created by The Teacher’s Pet is what arguably finally forced a prosecution.

Without The Teacher’s Pet it’s unlikely there’d have been a teacher’s trial.

The Unmade Index: A touch of green

After Monday’s drop, the Unmade Index of ASX-listed media and marketing companies blipped back upwards on Tuesday, with Ooh Media leading the way rising by 2.24%.

Reasearch company Pureprofile - which reported its annual results yesterday (more detail on that later in the week) - had the worst of it, with a share price fall of 8.51%

Time to let you go about your day. We’ll be back with more tomorrow,

Have a great Wednesday.

Toodlepip…

Tim Burrowes

letters@unmade.media