Crikey cops a broadside

Mark Day
April 27, 2010

As appeared in The Australian on February 22, 2001.

AS entertainment goes, the legal stoush between Stephen Mayne and Stephen Price is a ripper. It has a plot made for a telemovie – a couple of colourful media characters locking horns over principles, charges of hypocrisy, public exhortations to ridicule, personal venom involving lawyers as wedding guests, and the odd moment of debate about the rights and wrongs of defamation law and free speech.

Mayne, who has just celebrated his first anniversary as proprietor of, a website of political, business and media comment, is making the running, while Price, who made his name by making rudeness an art form as the drive time announcer on Melbourne's 3AW, maintains a lawyer-directed silence.

Mayne is clearly hoping his battle with Price will be elevated to a proper debate about defamation and free speech, and along the way he'll get enough publicity to drive his website towards break-even, or even profit. It's a canny, if not noble, thought, but it is unlikely to happen.

Because these matters are before the courts, I'll refrain from predicting any outcomes. But one of the grim lessons I learned in my time as a proprietor is that legal stoushes are to be avoided at all cost. This can be galling, particularly when you think matters of principle are involved, but win, lose or draw it's going to cost more to have the fight than settle it. The only winners are the lawyers.

Mayne is the unguided missile of the Australian media. That means he attracts attention, and in this action with Price, many journalist correspondents to his site are sooling him on with encouraging messages. It helps that Price has fostered a love-him-or-hate-him on-air persona. Those who dislike him are cheering loudly from the sidelines.

The current action sprang from last year's by-election in Frankston East, south of Melbourne, which saw the end of the Kennett government. On 3AW Price challenged a candidate who had failed to mention previous criminal convictions. The candidate was unimpressed by this and retaliated by making allegations about Price regarding a radio cash-for-comment deal. These were later investigated by the Australian Broadcasting Authority and found to be baseless.

The allegations were published in the industry journal AdNews, and Price sued. The matter was settled out of court.

Mayne also published the allegations, but took them down from his site immediately after he was informed of their inaccuracy. He replaced the offending article with an apology to Price, but commented that, inter alia, Price was a radio bovver-boy who could dish it out but not take it, and why would he bother to sue a $2 company such as Crikey Media?

Price did sue and over the next weeks Mayne kept subscribers informed of the legal manoeuvres on Price's behalf, including naming the solicitor handling the case and encouraging his readers to email him with the message that he (Price) should cease and desist in the action.

Price, meantime, went on air during his regular spot with John Stanley (2UE, Sydney) and bemoaned the trend in Australia for people to sue over inconsequential matters – in this case, a girl who was allegedly scalded by hot water at a children's party at a McDonald's outlet.

Now, Mayne reasoned, he had Price on a charge of hypocrisy. His website commentary became more colourful and he invited his readers to join him at a 3AW outside broadcast to protest against Price.

Price saw this as a campaign of intimidation, and his lawyers served papers alleging contempt of court. In a 41-page statement of claim, they said: ``The publications both individually and cumulatively were likely to, or had a tendency to, or were intended to, interfere with or obstruct the due administration of justice in that they contained threats directed to both the plaintiff and his legal representatives designed, calculated or intended to dissuade the plaintiff from continuing his proceedings; they contained warnings directed to the plaintiff that unless he discontinue or withdraw his proceeding he would suffer ... adverse publicity and public condemnation ...''

At this point Mayne discovered the legal team lined up against him included barristers Gina Schoff and Will Houghton, QC, who he said were friends of his wife, Paula, and had attended his wedding last year. ``Thanks for the nice throw rug, Gina,'' he wrote.

Throughout, Price has said nothing. But he has stuck to his belief that any media outlet – whether it has an audience of millions or a few hundred, such as Crikey – has a responsibility to get its facts right or face the consequences. He is of the view that he has to get it right on his radio program, so there shouldn't be different rules for web publishers.

This is a valid point, and it shows our protagonists are talking about two different things. Price wants the existing rules enforced. He is using laws that most journalists think are restrictive, outdated and perilously difficult in their lack of uniformity between the states, to protect his reputation.

No matter what we might think of that course of action, he has that right.

Mayne, clearly, would like a national debate on what the rules of defamation and free speech should be. He has provided a sideshow of commentary and activism which might have entertained his customers, and has, according to his claims, resulted in a surge of 200 new subscriptions and $6000 in revenues. He even suggests making Price his marketing manager.

There is a benefit in characters like Mayne, wild cards pricking the pompous and having a larrikin go at the status quo. The world would be dull without them. But I am afraid, if my experience with defamations and contempts is any guide, Mayne will discover to his considerable consternation that the law tends to look only at the matters before it, and resists any entreaty to debate wider issues.

That could be a very costly misjudgment.