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10 June 2022

On 6 June 2022, the Federal Court of Australia handed down a ruling on former New South Wales Deputy Premier John Barilaro’s defamation action against Google over YouTuber Jordan Shanks, aka FriendlyJordies. In Barilaro v Google LLC [2022] FCA 650,1 Justice Stephen Rares ordered Google to pay $715,000 in damages to Barilaro, and referred both Shanks and Google to the Principle Registrar of the FCA for contempt of court. This verdict comes after over one and a half years of defamation, political battles, and legal proceedings, and at a time when defamation is a popular topic of discussion in the public, thanks to the defamation case between Amber Heard and Johnny Depp. But while most Australian media outlets will focus on the who, what, when, where, and why of this case, I instead would like to take a different approach, and instead focus on how Rares J came to the conclusion that there was defamation, and unpack the decision itself.

This case focused on two videos uploaded by Shanks in 2020. The first, bruz, was uploaded on 14 September, while the second, Secret Dictatorship, was uploaded on 21 October 2020. Barilaro, a second-generation Italian immigrant, became aware of Shanks’ activity in June 2020, including that the latter, a YouTube comedian, was using a strong, stereotypical Italian accent to “imitate” Barilaro.2 Shanks is also of Italian descent. This was part of Shanks’ ongoing personal crusade against the then-Deputy Premier Barilaro, and then-Premier Gladys Berejiklian, another second-generation immigrant. On 13 July 2020, the #KoalaKiller 2.0 Meme Review video was published, where Shanks referred to Barilaro as “Super Barilaro Bruz … then displayed and reads a rewritten Wikipedia entry for Mr Barilaro” that uses racist stereotypes, before Shanks calls him a “wog” and uses the stereotypical voice to mock Barilaro as he reads out complaints that Barilaro made about earlier videos.3

Barilaro’s complaints about the bruz video, which unlike the previous ones referred only to him, were the following: “(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.”4 With regard to the Secret Dictatorship video, Barilaro made the following submissions of defamation to the FCA: (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.”5

Rares J had previously heard the matter between Barilaro and Shanks in Barilaro v Shanks-Markinova (No 2),6 on 13 August 2021, where he resolved some matters in favour of Barilaro. These were mostly procedural matters or related to the applicability of some defences raised by Shanks. Further procedural matters were dealt with in Barilaro v Shanks-Markovina (No 3),7 and Shanks sought a trial by jury. Again, Rares J did not find in Shanks’ favour. By this time, Google had joined the matter as a second respondent (defendant). I wouldn’t recommend worrying about those cases, as they are just preliminary to the main one, and in the words of Rares J, “the issues in this proceeding are not straight forward.”8 Ultimately, Shanks and Barilaro settled out of court on 28 October 2021, with an apology on Shank’s behalf to be read in court on 5 November, the videos edited to remove the defamatory comments, and Shanks paid $100,000 for Barilaro’s legal fees for the applications made to the Federal Court by Shanks in the above two cases.9 According to Section 38(1) of the Defamation Act 2005 (NSW), mitigating factors that may reduce/avoid any damages sought by Barilaro at a later date include (a) an apology and (b) correction of published material. It is worth noting that, early on in the proceedings, Shanks admitted that complaints (a)-(c) about the bruz video were defamatory.10

Before looking at this case, it is worthwhile defining what exactly defamation is and how it is proven. Defamation is where the defendant communicates or publishes something that damages the reputation of the plaintiff, who in this case is Barilaro. The first step is to prove that the matter, which in this case is the YouTube videos, contains defamatory imputations. The imputations here are the eight complaints about the two videos. The court will take an objective approach to determine whether the imputations are defamatory, considering them from the perspective of ‘ordinary reasonable person’ to conclude whether they are defamatory.11 This person will have a “moral or social standard by which to judge the defamatory character of that imputation, … being a standard common to society generally … not by reference to sectional attitudes … [or] some higher ethical code or standard than that expected by the ordinary right-thinking member of society generally.”12 This means that the standard isn’t whether Shank’s audience, who are familiar with his content and style, would find it defamatory, but ordinary members of society. For the material to be defamatory, it must have a ‘sting’ that lowers Barilaro’s reputation. It must either “lower [him] in the estimation of” others; invite “hatred, contempt or ridicule” to be directed towards him; or lead him to “shunned or avoided, … [or] excluded from society.”13

The second element is whether the matter identifies the plaintiff, Barilaro. If it does, the court will consider whether the defamatory matter was published to a third party. This means whether someone who isn’t a party to this case saw or heard the defamatory matter, and understood that it was defamatory. If the defamatory matter was spoken on television, the person who spoke it will be liable for defamation, but the broadcaster will also be liable, because they published the television show by airing it to the public.14 Last year, Dylan Voller successfully sued Fairfax Media, Nationwide News, and Australian News Channel (Sky News Australia) for defamatory comments left by third party Facebook users on the Facebook pages of those three media outlets when they published articles about Voller’s time in a Northern Territory youth detention center on Facebook.15 Finally, under Section 10A of the Defamation Act 2005 (NSW), the subject of the defamation must suffer ‘serious harm.’

Turning now to the case itself, the second and third elements are relatively easy to deal with. In particular, given the imitations of Barilaro, images used, and the use of his name, the second element is easily proven. Similarly, following cases like Fairfax Media Publications Pty Ltd v Voller and Cornes v The Ten Group Pty Ltd, it is evident that Google is the publisher.

Rares J considered the Community Guidelines of YouTube to consider whether Google would be liable for any defamation made by Shanks. These Guidelines prohibit “[c]content that threatens individuals,” as well as “prolonged name calling or malicious insults (such as racial slurs) based on someone’s intrinsic attributes.”16 Although there can be exceptions for politicians or genuine “scripted satire” or comedy, “content said to be not allowed on YouTube” includes when a YouTuber, like Shanks, “[r]repeatedly encourages abusive audience behaviour … [or] [r]repeatedly targets, insults and abuses an identifiable individual based on their intrinsic attributes across several uploads.”17 YouTube also has policies against “hate speech,” including racism.18

Members of Barilaro’s team, including social media manager Rory Cunningham and deputy chief of staff Jeffrey McCormack, were in regular contact with Google from 25 November 2020 about the videos.19 On 3 December, Google said that none of the 11 videos complained of were in violation of the Community Guidelines.20 They later removed one on 15 December, but refused to take action on the other 10.21 On 22 December, Barilaro’s legal team sent letters to Google and Shanks listing the remaining 10 videos and defamatory remarks from the bruz video, and pointed out how those 10 videos violated the Community Guidelines.22 After demanding timestamps on 24 December 2020, on 2 February 2021 YouTube again said that there were no violations.23 Therefore, Rares J found them liable as a publisher for all 10 videos from 22 December 2020.24

Before looking at Rares J’s conclusions, I want to list just a few examples of defamation and its impact of it, along with paragraph numbers for those who want to read it in the judgment.

  • After bruz, Barilaro reportedly “was considering self-harm and discussing resignation from his office.” [71]
  • When Emma Alberici, ABC journalist and daughter of Italian immigrants, reported negatively on the bruz video, Shanks replied on Twitter by saying “How very Italian.” [76]
  • Shanks alleged that Barilaro had used “taxpayer money” to blackmail members of the Narrandera Shire Council. [88], [91]
  • Comparing Barilaro to the Mafia. [131]
  • Selling defamatory merchandise based on his videos. This includes selling keychains of his “truly testicular appearance.” [148].
  • Shanks referred to Barilaro’s Italian migrant heritage as his “Italian pity story.” [146]
  • Comparing Barilaro to Al Capone. [156]
  • Mocking Barilaro’s daughter. [193]
  • Barilaro had gone from inspiring people to “work and volunteer for him” and having the respect of people who disagreed with him over political matters to having his integrity questions. [273]-[276]

In his videos, Shanks encouraged his followers to interact with Barilaro on social media. Among the comments they left were “Your daughter should be tied to a pole and raped in front of you, and then we’ll kill you.”25 Encouraging this activity was in direct violation of the Community Guidelines, but despite Google’s awareness of this later on, they did not act. Barilaro was forced to take “a month’s mental health leave.”26

Ultimately, Barilaro resigned on 3 October 2021, almost a year since the Secret Dictatorship video was published. This was 2 years before he intended to, as he originally planned to resign at the 2023 state election. Given that the defamatory matter forced him to resign from office, it is evident that the fourth and final element of defamation, the serious harm requirement, was met.

Rares J ruled in his favour on all eight of the matters complained about. This meant that he was not guilty of the corruption and perjury that he was alleged to have committed. He applied the ruling of Isaacs J in the High Court of Australia case of Webb v Bloch to conclude that Google was liable for the defamation as a publisher, as “allowing and maintaining uploads of those videos made it a publisher of them as much as Mr Shanks.”27 In that case, Isaacs J held that the person who “circulates” defamatory is as liable as the person who composes it. See also Cornes v The Ten Group Pty Ltd, where Mick Molloy, a comedian, made defamatory remarks on television, and The Ten Group was held liable for defamation because they broadcast it.

In tort law, which encompasses defamation, there are four main types of damages. Damages are an award of money made to the plaintiff, if they win. Punitive damages, which are meant to punish the defendant, and exemplary damages, which seek to deter others by making an example of the defendant, are barred by Section 37 of the Defamation Act 2005 (NSW). Compensatory damages are meant to place the injured plaintiff in the position that they would be in if they had not been wronged by the defendant, or at least as well as money can achieve that.28 Aggravated damages are awarded when the defamation is so outrageous that it caused additional distress.

Economic damages are compensatory damages that are meant to compensate for financially calculable damages, and in this case were awarded for two years of lost income because of the forced early retirement. Non-economic losses are awarded to compensate for emotional loss and damage to reputation and both were awarded here. The maximum amount for non-economic compensatory damages is capped at $432,500 by the Defamation Act 2005 (NSW), but there is no limit when aggravated damages are awarded.29 A high amount of non-economic losses was awarded “to reflect the very substantial damage done to his feelings, his reputation, the need to nail the lie and vindicate him in the public.”30 Aggravated damages were awarded for Google dragging its feet in court proceedings, and Google knowingly keeping up content that breached the Community Guidelines, causing trauma, and causing this harm so that Google could profit from it through viewership of Shanks’ content.31

However, this case may not be over yet. Shanks and Google have been referred to the Principal Registrar of the Court, who is responsible for the administrative operations of the Federal Court, for contempt of court. Contempt includes things like disrespect and unlawful pressure to drop a case. A video was uploaded on 22 December 2021, exactly one year after Barilaro’s lawyers sent letters that listed the defamatory videos to Shanks and Google, and in that video Shanks sought to intimidate Barilaro’s lawyers and force them to drop the action or quit.32 This video and other behaviours by Shank, supported by Google, including harassment on Twitter over the 23 July 2021 hearing, one of the hearings that needlessly dragged out the case,33 are grounds for contempt of court. The Federal Court can punish parties for contempt of court under Section 31 of the Federal Court of Australia Act 1976 (Cth). If successful, it could result in further fines for either Shanks or Google. I will be following this case closely and will provide an update if it is found that there has been contempt of court.

I hope that this article has provided an explanation of the law behind the Federal Court’s ruling. It demonstrates that even though free speech is important in democracies, and that politicians should have a “broad back” and expect criticism, there is an expectation “that the facts upon which such criticism is based are true,”34 and that no one should be subjected to this treatment for lies.

Footnotes

28. Todorovic v Waller (1981) 150 CLR 402, 442 (Gibbs CJ and Wilson J).

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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