Google smacked with $715,000 defamation payout to former NSW deputy premier – how the judge reached his decision and why it may not be the end of the matter

10 June 2022

Publications

Former deputy Premier of NSW, John Barilaro, has been awarded $715,000 in damages and interest by the Federal Court of Australia after he sued Google for defamation over two videos published on YouTube by ‘friendlyjordies’.[1]

Barilaro claimed that the videos falsely conveyed imputations that he is corrupt, committed perjury and engaged in blackmail.  In the videos, friendlyjordies parodied Barilaro’s Italian heritage and accent, comparing him to Super Mario Brothers, the mafia and a meatball, and calling him offensive and racially-charged names.

Since the creator of friendlyjordies, Jordan Shanks-Martinova (Shanks), settled with Barilaro following a mediation and Google withdrew its substantive defences in the lead up to the trial, the judgment relates only to the assessment of the damages to be awarded.  The judgment appears to give rise to a number of appeal points in relation to the quantum awarded, so it will be interesting to see whether Google lodges an appeal.

BACKGROUND

 The videos the subject of the proceedings were uploaded to YouTube in September and October 2020.

Barilaro initially raised concerns about 11 friendlyjordies videos with Google Australia’s public policy and government relations team, which escalated them to Google’s “Trust and Safety Team” in the US.  Google has a set of internal policies, called ‘Community Guidelines’ which outline the types of content which are not acceptable on YouTube, including vulgar language, harassment, cyber-bullying and hate speech.  Google determined that none of the 11 videos violated their policies.  Two weeks later, Google informed Shanks that it had taken down one video and informed Barilaro that it declined to take any action in relation to the remaining videos.

It was agreed between the parties that Google became liable as a publisher of the videos one week after communicating the decision not to take down the videos, being 22 December 2020.  This was the same date on which Barilaro’s lawyers sent a concerns notice to both Shanks and Google asserting the 10 videos that remained online were defamatory of him.  As a result, there is no discussion in the judgment about the innocent dissemination defence, which provides that a subordinate distributor is not liable in defamation if they neither knew, nor ought reasonably to have known, that material was defamatory.[2]

This is not a case in which new law was made.  Rather, it’s an expensive reminder about how costly the liability can be for secondary publishers who are usually not privy to the facts behind a publication in the way a primary publisher is.

DEFENCES

 Proceedings were commenced on 27 May 2021 in relation to just two of the 10 videos complained of.  In July 2021, Justice Rares granted Barilaro leave to serve Google in the United States.

In the meantime, Shanks was required to file his defence.  He initially pleaded defences of truth, contextual truth, honest opinion and qualified privilege.  Justice Rares held in an interlocutory judgment that Shanks could not, due to parliamentary privilege, plead truth to imputations that Barilaro perjured himself in giving evidence to a committee of the Legislative Council of NSW because Article 9 of the Bill of Rights 1688 (Eng), which applies to proceedings in all Australian parliaments, prohibits anyone impeaching or questioning in any court, the freedom of speech, debates or proceedings in Parliament, including any Parliamentary committee.

Google then filed its defence, pleading qualified privilege, honest opinion of a commentator and the newly introduced public interest defence in respect of publications of the videos which occurred after the defence came into effect on 1 July 2021.

SETTLEMENT AGAINST SHANKS

 Following a mediation in October 2021, Barilaro settled with Shanks, with Barilaro discontinuing the proceedings against him in exchange for payment of $100,000 towards his costs.  In the terms of settlement, Shanks agreed to edit the two videos sued on to remove certain portions which conveyed the defamatory imputations.  Google sought to argue that Barilaro had consented to the publication of the edited videos.  Barilaro denied this and said that Google’s conduct in leaving up the edited videos aggravated the damage done to him.  As discussed further below, Justice Rares agreed with Barilaro.  This alone is an interesting finding.

DAMAGES

 In the weeks prior to the trial commencing, Google notified Barilaro that it was withdrawing its defences other than the public interest defence.  On the first day of trial, after Barilaro’s senior counsel stated that he was not claiming damages for publications after 1 July 2021, Google notified that it would not press its public interest defence.  The trial was therefore limited to an assessment of damages.

Compensatory damages

Google argued that it was not liable for any harm Barilaro suffered in the period prior to it becoming liable as a publisher on 22 December 2020.  It was contended the damages should be reduced significantly since most of the harm to Barilaro caused by the videos would have occurred shortly after they were uploaded in September and October 2020, when the videos received the most views.  For example, in the period prior to Google becoming liable as a publisher, there were 490,000 views of one of the videos known as the “bruz” video in Australia, whereas there were only 140,895 views of the video in Australia from when Google became liable as a publisher until 30 June 2021.  It appears logical that the damages awarded to Barilaro should have been reduced proportionately to reflect that only 22 percent of the publications occurred when Google held joint and several liability as a publisher.

However, Justice Rares held]: “A publisher cannot lead 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.”  His Honour said: “Mr Barilaro should not have his damages discounted on Google’s erroneous hypothesis that by the time it had notice of the defamatory character of those videos, namely 22 December 2020, Mr Barilaro’s reputation had already been tarnished and his feelings hurt so that it only had to compensate him for any further damage to his reputation or feelings.”  This finding was reached despite his Honour having recognised in a previous judgment that Barilaro only sought to rely on publication by Google that occurred after 22 December 2020.[3]  That appears ripe for an appeal.

Further to this, Barilaro did not claim any damages after 1 July 2021.  This was the stated reason why Google withdrew its public interest defence.  Despite this, Justice Rares appears to have counted the number of views during the period between 1 July 2021 and November 2021 (when Shanks edited the videos) in conducting his damages assessment.

In considering Barilaro’s hurt to feelings, Justice Rares did not appear to differentiate between the consequences of Shanks’ actions (noting he communicates with his followers on platforms other than YouTube) and the consequences of Google’s actions in allowing the videos to remain on YouTube.  It appears that there were causation issues in this case which were not adequately taken into account by the Court.  Again, this might provide fertile ground for any appeal.

Aggravated damages

In support of his claim for aggravated damages, Barilaro sought to rely on Google’s failure to take down the videos, Google’s conduct of the proceeding and Google’s failure to apologise.

Failure to take down the videos

In relation to Google’s failure to take down the videos, Justice Rares found that Google should have found that the videos breached its policies.  His Honour said Google “operates a very large business in Australia, has Australian staff and lawyers and could not suggest that it was somehow ignorant of how hurtful and bullying the bruz video was in its use of the slurs and venomous hate speech that Mr Shanks directed avowedly, deliberately at Mr Barilaro“.

While it is not specifically stated in the judgment that Barilaro pleaded the publication of other friendlyjordies videos as a matter of aggravation, Justice Rares found the continued publication of those videos were aggravating.  His Honour said: “those videos compounded the harm to Mr Barilaro’s reputation from the matters complained of and provoked numerous comments from the public so that they can be taken into account without a discount even if they were online before 22 December 2020, including because Google left them there afterwards“.  Justice Rares also found that Google had no reasonable basis to publish the edited versions of the matters complained of.

While Google asserted that it was critical to distinguish Google’s position from that of Shanks because it was “not the creator of the content”, Justice Rares rejected this as untenable, stating that on 22 December 2020 Google made a deliberate decision to publish the various videos, the result of which was that Google became fully liable as a publisher, including for Shanks’ statement of mind.  It was therefore held that Google’s initial inaction from late December 2020 and its subsequent continuing failure to remove the matters complained of and other videos in Shanks’ “ongoing campaign of harassment and abuse” aggravated the damages very substantially.

General conduct of the litigation

 Justice Rares also found that Google’s maintenance of “untenable” issues, such as its denial that the imputations were conveyed and its pleading of defences that it later withdrew, was aggravating.  His Honour observed that the qualified privilege defence was hopeless because Google “made no attempt to seek, let alone put, Mr Barilaro’s side of the various subjects on which he was attacked” and that the honest opinion defence was hopeless because of the “many misstatements and distortions” in the videos.  In so finding, Justice Rares appears to have imposed journalistic standards on Google, which is not and should not be required to act as a primary publisher, given it is not the originator of content.

His Honour also found the public interest defence was hopeless because s 29A of the Defamation Act 2005 (NSW) (Defamation Act), which took effect from 1 July 2021, only provides a defence in relation to electronic defamatory matter which is first uploaded on or after 1 July 2021 due to the operation of the transitional provisions in the Defamation Act and the Limitation Act 1969 (NSW).  In any event, Justice Rares also found it impossible to discern how Google could have believed that continued publication of the videos was reasonable in the public interest given their content.

Failure to apologise

Justice Rares found at [394] that Google’s failure to apologise aggravated the damages substantially.

Assessment of damages

In assessing the damages to be awarded, Justice Rares made a number of sweeping statements including that:

  • Google “encouraged and facilitated Mr Shanks in his vitriolic, obsessional, hate filled cyberbullying and harassment of Mr Barilaro both before and after Mr Shanks settled the defamation claims against him” with a view to its commercial profit, and referred to a passages of the High Court’s decision in the Voller proceedings[4]; and
  • Google’s publication of the matters complained of drove Mr Barilaro prematurely from his chosen service in public life and traumatised him significantly. … [Shanks] needed YouTube to disseminate his poison. Google was willing to join Mr Shanks in doing so to earn revenue as part of its business model. It did so without regard to acting as a responsible or reasonable publisher, which actually intended its policies to be applied to Mr Shanks’ campaign, would have acted“.

It is interesting to note that the revenue figures quoted in the judgment as being what Google derived from the videos predate Google becoming liable as a publisher of the videos for defamation purposes.  The references to the Voller decision in this context also appear misplaced, given that decision merely holds that a page owner on a platform is liable for third party comments posted on their page.  The analogy here would be to say Shanks was liable for third party comments posted on YouTube in response to his videos.  The inapt reliance on Voller occurs a number of times throughout the judgment.

Overall, Justice Rares found: “Having regard to all of the evidence, the gravity of the imputations, the harm to Mr Barilaro’s feelings and reputation, Google’s significant aggravation of the damage and the need to vindicate Mr Barilaro’s reputation, I consider that he is entitled to judgment in the sum of $675,000. He is also entitled to prejudgment interest from 22 December 2020 of $40,000.”

CONTEMPT ISSUE

 After proceedings had been foreshadowed, Shanks had posted a further video in which he denigrated Barilaro for threatening to sue him and also criticised Barilaro’s lawyer.  He said: “You’re starting to see why it was a bad idea to send me a defamation threat“.

 After proceedings were commenced, Shanks continued to upload videos about the proceedings and Barilaro’s lawyers.  Justice Rares held in his judgment that these public out of Court attacks on Mr Barilaro and his lawyers for bringing the proceeding “were brazen attempts to bring improper pressure to bear on each of them“.  His Honour referred the conduct of both Shanks and Google to the Principal Registrar of the Court to consider whether to institute proceedings for contempt of Court.

NEXT STEPS

 The parties will now be required to make submissions on costs.  Justice Rares essentially invited Barilaro to make an application for indemnity costs when his Honour observed: “Having regard to my findings on aggravated damages, my preliminary view is that Mr Barilaro may wish to seek a special order for costs.”

It appears Google also has a number of arguable appeal points which, if upheld, may result in the quantum of damages awarded being substantially reduced.  In particular, the finding that Google was liable for damage caused to Barilaro before the date on which it became liable as a publisher under the law of defamation seems particularly problematic, and should be clarified.

[1] Barilaro v Google LLC [2022] FCA 650 (6 June 2022)

[2] Section 32 of the Defamation Act 2005 (NSW).

[3] Barilaro v Shanks-Markovina (No 3) [2021] FCA 1100 (31 August 2021)

[4] Fairfax Media Publications Pty Ltd v Voller (2021) 392 ALR 540

Authors 

Marlia Saunders | Partner | +61 2 8248 5836 | msaunders@tglaw.com.au

Justin Quill | Partner |  +61 3 8080 3748 | jquill@tglaw.com.au

This article first appeared on Lawyers Weekly