Case Summary and Outcome

The Federal Court of Australia has ordered Google LLC to pay AUD $715,000, as damages to John Barilaro, the applicant who was the target of defamatory content and false imputations on YouTube in violation of the law. John Barilaro, the former Deputy Premier of New South Wales, filed a defamation suit against Jordan Shanks and Google Incorporation due to a relentless, racist, vilifying, abusive, and defamatory campaign run by Mr Shanks on YouTube. However, during the legal proceedings, the applicant and Mr Shanks reached a settlement. The Court observed that individuals involved in politics take on the risk of being subjected to harsh public criticism, which might be acceptable as freedom of expression, but not even politicians are expected to be subjected to abuse, hate, racism, and defamation merely because they operate in the sphere of public interest. The Court also noted that the platform on which content is published (the publisher) has certain liabilities regarding content that violates the law as such violations can result in the imposition of aggravated damages against the publisher.

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Facts

The applicant, John Barilaro, served as the Deputy Premier of New South Wales and leader of the State Parliamentary National Party between 15 November 2016 and 5 October 2021 when he resigned, announcing his retirement from politics. Before the resignation, Mr Barilaro faced a vicious, defamatory attack online led by someone called Jordan Shank. This campaign took place on YouTube, which is a platform operated by Google LLC and the second most visited website in the world, through an online account, run by Mr Shank, called friendlyjordies.

Mr Barilaro filed a lawsuit against Jordan Shank and Google Incorporation, complaining about two particular defamatory videos titled “Bruz” and “Secret Dictatorship”, falsely accusing him of corruption. He argued that Google is liable for the publication of both videos as it received a concerns notice on the 22^nd of December 2020 and failed to act accordingly.

Mr Barilaro claimed that the first video conveyed five explicit defamatory imputations of corruption and perjury against him, namely:

“(a) Mr Barilaro is a corrupt conman;

(b) Mr Barilaro committed perjury nine times;

(c) Mr Barilaro has so conducted himself in committing perjury nine times that he should be gaoled;

(d) Mr Barilaro corruptly gave $3.3 million to a beef company; and

(e) Mr Barilaro corruptly voted against a Royal Commission into water theft.”

He also contended that the second video carried three direct defamatory accusations, as stated below:

“(a) Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors;

(b) Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors using taxpayer money; and

(c) Mr Barilaro has pocketed millions of dollars which have been stolen from the Narrandera Shire Council.” [Paras. 1, 3, 4, 5 & 6]

The Court refused Mr Shanks’ defence that the videos portrayed an “honest opinion relating to a matter of public interest based on proper material” under Sections 25 and 31 the 2005 Defamation Act (“the Act”). Afterwards, Mr Barilaro and Mr Shanks reached a settlement, including that Mr Shanks would 1) remove “those parts that conveyed the imputations”, 2) submit “an apology that his senior counsel read in open Court”, and 3) pay “$100,000 in respect of Mr Barilaro’s costs of his unsuccessful applications for a stay of the proceeding and a jury trial.”

Google moved to dismiss the case by arguing that the videos at issue were in the public interest under the Act and thus, fell within the scope of protection afforded by the “constitutional freedom of communication on government and political matter”.

The Court denied the submissions made by Google, ordering it to pay the sum of $715,000, as damages to John Barilaro.

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Decision Overview

Judge Rares J delivered the decision of the Federal Court of Australia.

The central issue to be determined by the Court was whether online platforms are liable, as publishers, for the content published on their platforms, which is alleged to be racist, vilificatory, abusive and defamatory.

On the one hand, Google made categorical defences that (i) the videos did not convey any of the complained of imputations; (ii) the videos enjoyed qualified privilege as they were published on government and political matters; (iii) the Bruz video “concerned a matter of public interest” and Google genuinely believed that such publication would be in public interest and thus protected under Section 29A of the Defamation Act; (iv) the complained of videos were “expressions of opinion of a person other than Google” and were not “statement of fact” and the opinion therein related to matters of public interest and was based on proper material or perceived to be based on proper material, thus being protected under Section 31(3) of the Defamation Act. [para. 194] Later on, on the first day of the trial, Google dropped all of its defences.

On the other hand, the applicant argued that while he accepts that “as a politician, he was open to public scrutiny for his public conduct and policy stances”, this would ordinarily happen when the media present questions and offer an opportunity to respond. He argued further that this was not the case with Mr Shanks’ videos, which were clearly false accusations and “just a vile attack on [him] using racism and claims of corruption”. [paras. 65-67] The applicant raised six additional grounds for the grant of aggravated damages against Google:

(i) failure to remove the two videos complained of;

(ii) continued failure to remove the videos despite being aware of the harassment and abuse against the applicant;

(iii) Google removing the video only by the first day of the trial;

(iv) general conduct of Google;

(v) Google remaining unapologetic;

(vi) Improper examination of the applicant by Google. [para. 310]

The relevant applicable rules are Sections 29A, 30, and 31 of the Defamation Act. It is important to note here that Section 29A was introduced under the Defamation Act after the commencement of the proceedings.

“29A   Defence of publication of matter concerning issue of public interest.

(1) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter concerns an issue of public interest, and

(b) the defendant reasonably believed that the publication of the matter was in the public interest.

…

(3) Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances—

(a) the seriousness of any defamatory imputation carried by the matter published,

(b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts,

(c) the extent to which the matter published relates to the performance of the public functions or activities of the person,

…

(g) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person,

(h) any other steps taken to verify the information in the matter published,

…”.

“30   Defence of qualified privilege for provision of certain information.

(1)  There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

(a)  the recipient has an interest or apparent interest in having information on some subject, and

(b)  the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c)  the conduct of the defendant in publishing that matter is reasonable in the circumstances.

…”.

“31   Defences of honest opinion.

…

(3) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and

(b) the opinion related to a matter of public interest, and

(c) the opinion is based on proper material.

…”.

The Court first noted that exercising freedom of speech and communication of opinion is an essential feature of a healthy democracy, but nothing can be claimed to be absolute. The Court accordingly found that the responses received by the applicant because of the videos to be “vitriolic and hateful” and amounting to “cyber bullying and harassment of Mr. Barilaro”. [para. 212] The Court then elaborated that even though politicians and public figures are to expect that their conduct and policies will be subjected to public scrutiny, criticism, and even “vehement disagreement”, “they are at least entitled to expect that care should be taken to check that the facts upon which such criticism is based are true.” Austin v. Mirror Newspapers Ltd. [1986] AC 299 at 313E [paras. 214 and 215] The Court further noted that legitimate criticism does not extend to engaging in a torrent to gratuitous racial slurring, stereotyping, name-calling, or threats of violence against the personal safety of the persons, and his or her partner or children. [para. 213]

Afterwards, the Court made a detailed scrutiny, taking into account the factual evidence of the extent of the videos, the earnings of Google from the videos, and the harm caused to the reputation of the applicant. [paras. 254 to 278] The Court acknowledged the evidence submitted by the applicant that the imputations were false. [para. 291] The Court consequently observed that “the wrong done to the claimant includes the injury to both his or her feelings and reputation.” [para. 287] The Court also found Google to be aware of all of Mr. Shanks’ videos attacking Mr. Barilaro and Google’s act of allowing and keeping the videos uploaded made Google a publisher as well. [para. 290] As for Google’s defence that it is not liable for any harm that Mr Barilaro suffered before suing the company as a publisher on and from 22 December 2020, the Court was of the view that “a publisher cannot [provide] evidence of similar or earlier publications for the purpose of establishing that the publisher’s defamatory publication did not cause all of the damage of which the claimant complains in a proceeding for defamation.” [para. 284]

The Court made a detailed analysis of the YouTube’s policies and guidelines on allowable content. [paras. 112–128] The Court quoted YouTube policies to define harassment and cyberbullying as “content that features prolonged name calling or malicious insults such as racial slurs based on an individual’s intrinsic characteristics.” The Court also quoted hate speech definition which stated that “content that promoted hatred against an individual based on attributes such as ethnicity or race, racial or other slurs or stereotypes that incited hatred on such a basis, claims that an individual is ‘mentally inferior’ on such a basis and putting conspiracy theories that an individual is ‘evil, corrupt or malicious based on any of those attributes.” [paras. 326, 327] The Court also made reference to the Racial Discrimination Act 1975 and pointed out that the International Convention on the Elimination of all forms of Racial Discrimination has been ratified by Section 7 of the said act and the convention is set out in the Schedule to the act. The Court stated the “An act done, communicated to the public, that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person and that is done because of the person’s race, national or ethnic origin” is unlawful by the virtue of Section 18C(1) of the Act. The Court expounded that “[h]ate filled speech and vitriolic, constant public cyberbullying, however, cannot be classified as in any way acceptable means of communication in a democratic society governed by the rule of law.” [para. 348]

Afterwards, the Court emphasised that since Google operates a sizeable business in Australia, an understanding of Australian law is to be expected. [para. 333] The Court rejected Google’s defence that insulting was not the focus of the Bruz video, highlighting that the “Bruz video was a running stream of insults”. [para. 334] Google also submitted that it not the “creator of the content” and is thus in a different position than Mr. Shanks. However, the Court observed that “every publisher of defamatory matter is equally liable for its publication.” [para. 338] The Court also noted that Google’s knowledge of the videos, their impact and yet lack of any actions makes them liable for defamation. [paras. 339-342] The Court concluded that Google’s conduct in allowing the defamatory videos to remain online aggravated the hurt to the applicant and also portrayed that Google had a “bona fide” defence was unjustifiable, improper, and non bona fide. [paras. 348-349]

The Court further found the pleading of qualified privilege on the implied freedom at common law, as raised by Google to be unjustifiable for the following reasons:

(i) Lack of reciprocity of duty and interest between Google as a publisher and the general audience to justify the publication of the content complained. [para. 364]

(ii) A defence of qualified privilege would not succeed since it cannot be in the common interest of society to allow the reputation of a defamed person to be severely damaged before a large audience.

(iii) Unreasonableness of conduct on the part of Google, as a claim of qualified privilege requires the conduct of the publisher to be reasonable. [paras. 367-368] And in this particular case, Google “made no attempt to seek, let alone put, Mr Barilaro’s side of the various subjects on which he was attacked and there was no conceivable reason to suggest doing so was not practicable or unnecessary”.

With regard to Google’s defence under the amended Section 29A, which was later dropped by Google itself, the Court stated that the requirements of the new law would only be applicable to matters for which the cause of action arises after the commencement of the new law. Thus, no retrospective application would be present. [paras. 379, 381] Nevertheless, the Court stated that the hypothetical application of the amended act would require the establishment of the fact that Google had a reasonable belief in the public interest of the publication of the video. [paras. 382, 387]

The Court finally discussed various legal principles regarding the award of damages for defamation. It noted that the purpose of compensatory damages is threefold, (i) to console for the personal hurt and distress caused by the publication; (ii) to repair damages done to reputation; (iii) to vindicate personal reputation. [para. 292] Section 34 of the Defamation Act mandates that the damages awarded should have an “appropriate and rational relationship” with the harm caused to the reputation. [para. 293] After analysing the harm caused to the applicant by the videos and Google’s inaction, the Court was of the opinion that the compensation should also include “Google’s aggravation of damages”. [para. 309]

The Court explained that aggravated damages are compensatory rather than punitive. According to the Court, such damages are warranted when when the conduct of the publisher goes beyond what is “proper, justifiable or bonafide”. [para. 311] The Court rejected Google’s defence that the applicant did not use the proper form to lodge a complaint, and that the damage was caused by the initial publication, and no further harm was caused because Google did not remove the videos complained of. [paras. 315-316] The Court also stressed that Google’s continuous failure to apologize aggravated the damages to the applicant. [para. 394]

In conclusion, the Court held that Google driven by commercial profit “made a considered decision to keep the Bruz and Secret Dictatorship videos … knowing of their content and Mr Barilaro’s complaints” and with that, “Google encouraged and facilitated Mr Shanks in his vitriolic, obsessional, hate filled cyberbullying and harassment of Mr Barilaro”. [para. 402] This is despite the fact that Google has been keen to introduce YouTube as a platform with sensitive policies aimed to protect individuals against racism, harassment, hatred, and cyberbullying, which failed to provide any protection to the applicant. [para. 403] Accordingly, Google was deemed a responsible publisher and was therefore liable for the significant damage caused by Mr Shanks’ videos against the applicant. [para. 404]

Having considered all aggravating factors, the seriousness of the accusations, and the reputational harm suffered by the applicant, the Court ordered Google to pay the applicant the sum of $675,000 and a prejudgment interest of $40,000. [para. 405]

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