Australia: Contempt, defamation, and the dissemination of online poison: part one

A two-part analysis of the recent decision of Barilaro v Google LLC [2022] FCA 650

Earlier this month, Justice Rares of the Federal Court of Australia delivered judgment in Barilaro v Google LLC [2022] FCA 650 (Barilaro) in which:

• Google was ordered to pay Mr Barilaro $715,000; and
• Each of Google and Jordan Shanks-Markovina (aka 'friendlyjordies') was referred to the Principal Registrar to consider whether to institute proceedings against them for what, it was said, appeared to be serious contempts of court.

This is a two-part publication:

1. Part 1 - below - is an overview of the circumstances leading up to the judgment, including what went wrong for Google as it progressively abandoned all of its defences until it was on the receiving end of one of the most scathing defamation judgments in recent times.
2. Part 2 - here - explores some of the interesting and topical questions raised by the proceedings, at a time when Australian defamation law reform is ongoing, including as to corporate social responsibility, the extent to which online platforms like Google should be liable for defamatory publications uploaded by third parties, and the limits which should be imposed on our freedom to express opinions about those in public office.

Background

In Australian Consolidated Press Ltd v Uren [1966] HCA 37, Windeyer J said that "a man who chooses to enter the arena of politics must expect to suffer hard words at times".

John Barilaro was the Deputy Premier of New South Wales and the leader of the State Parliamentary National Party from 15 November 2016 until, on 5 October 2021, he resigned as Deputy Premier and announced his intention to retire from politics.

For over a year preceding his resignation, Mr Barilaro had suffered much more than 'hard words'.

He had been the victim of a terrible onslaught of abuse - both online and in person - as a result of a series of videos about him which had been uploaded to YouTube by Mr Shanks.

Mr Shanks, and the videos

Mr Shanks is a political commentator, comedian and YouTuber.

From mid-2020, he started to target Mr Barilaro in a series of videos.

It is important to understand from the outset that the videos were not 'merely' defamatory - Justice Rares characterised them throughout his judgment as "relentless, racist, vilificatory", "deeply offensive.and unacceptable", "patently racist", "vitriolic" and "obsessional".

The videos provoked thousands of abusive, denigratory online statements about Mr Barilaro - some sent to him privately; others posted publicly. Some of the third party responses to the videos are revolting, such as a Facebook message referring to Mr Barilaro's young daughter, which Justice Rares described as "particularly vile".

After Google, which operates the YouTube platform, refused to remove the videos, Mr Barilaro commenced defamation proceedings against Mr Shanks and Google.

He sued on two of the videos - 'bruz' and 'Secret Dictatorship'.

He alleged they conveyed defamatory imputations, including that he had acted corruptly, was a conman, and had committed perjury.

Mr Shanks' Defence

In August 2021, Justice Rares found that Mr Shanks could not plead justification under s.25 of the Defamation Act 2005 (NSW) (the Act) to one of the imputations (that Mr Barilaro had committed perjury) or honest opinion under s.31 of the Act, because this would involve impeaching or questioning proceedings in Parliament (in contravention of Art 9 of the Bill of Rights 1688 (Eng), as applied in New South Wales by force of s.7 of the Imperial Acts Application Act 1969 (NSW)).

Google's Defence

Google filed a Defence - in which it:

• Denied that the videos conveyed any of the imputations;
• Pleaded that the videos were published on an occasion of qualified privilege - pursuant to: first, the common law; secondly, the implied freedom referred to in Lange v Australian Broadcasting Corporation(1997) 189 CLR 520 (Lange); or thirdly, s.30 of the Act;
• Pleaded a reliance upon the new defence of public interest under s.29A of the Act (part of the 2021 amendments to the defamation legislation); and
• Pleaded that one of the videos - bruz - was a statement by Mr Shanks of his honest opinion based on proper material under s.31(3) of the Act.

Settlement between Mr Barilaro and Mr Shanks

In October 2021, Mr Barilaro settled with Mr Shanks - the settlement required him to remove the defamatory parts of the two videos sued upon, make an apology (which was read in open court in November 2021), and pay Mr Barilaro $100,000 in costs.

Abandonment of Google's defences

Prior to and during the hearing, Google started to progressively abandon its defences.

First, on 14 March 2022 - exactly one week prior to the commencement of the hearing - Google abandoned its defences of qualified privilege and honest opinion.

It was found that these defences had been hopeless, could never have succeeded, and should not have been pleaded.

The pleading of common law qualified privilege was "unjustifiable". That was because there could not have been the requisite reciprocity of duty and interest between Google, as publisher of the videos on YouTube, and the mass audience to whom the videos were indiscriminately published.

Nor could there have been a defence of qualified privilege under the implied freedom or under s.30, each of which require the publisher to show that its conduct was reasonable. Google's conduct was "unreasonable".

That left only the defence 'of public interest' under s.29A (even though this only applies to publications after 1 July 2021 and the two videos sued upon were first uploaded in September and October 2020). On the first day of the hearing (21 March 2022), Mr Barilaro's Senior Counsel repeated a submission which had been put in an argument back in August 2021 - that Mr Barilaro was not making any claim for publication after 1 July 2021 and that therefore s.29A did not apply. The penny dropped. Later that day, Google agreed 'not to press' the defence under s.29A. Even if s.29A could have applied, the defence was "hopeless" - including because Google could not have shown that it reasonably believed that the publication of the videos was in the public interest.

Also on the first day of the hearing, Google abandoned its denials that the videos conveyed the imputations. These denials had been made notwithstanding that: a) Mr Shanks had himself admitted they were conveyed by his videos; and b) the very words of at least some of the imputations were in the videos themselves (i.e. they were conveyed explicitly). Justice Rares found that Google's denials had been "obviously hopeless", "unjustifiable" and "untenable". Each of the imputations was "as plain as day".

The pleading was found to have been an abuse of the Court's process, and reflects poorly on Google.

Google's conduct has the potential to reinforce the layman's suspicion that litigation is 'a game', the rules of which can be bent or broken by corporate defendants with deep-pockets.

Google never had a viable defence. But rather than removing the videos, it "dragged the litigation out by pleading defences that had no prospect of succeeding, causing Mr Barilaro added distress, damage to his reputation, and delay to his vindication".

Award of damages

By the second day of the hearing, therefore, all that remained was an assessment of damages.

The award of damages - $715,000 - was high, but perhaps not surprisingly so.

The Court found that the imputations were serious, and that the publications not only were widespread but had resulted in Mr Barilaro being driven prematurely from public office (though no doubt some will re-evaluate this finding in light of the recent reporting about Mr Barilaro's appointment to a US trade role).

The judgment sum had "to reflect the very substantial damage done to his feelings, his reputation, the need to nail the lie and to vindicate him to the public".

In addition, Google was found to have aggravated the harm suffered by Mr Barilaro by:

• Its failure to remove the videos;
• Its conduct of the proceedings - including, as above, pleading defences which were hopeless;
• Its failure to apologise; and
• Its cross-examination of Mr Barilaro.

Click here to read part two, which explores some of the interesting and topical questions raised by the proceedings.

Footnote

¹ Barilaro v Shanks-Markovina (No 2) [2021] FCA 950.