Google’s costly loss to former New South Wales Deputy Premier John Barilaro shows the tech giant needs to start taking Australia’s defamation laws seriously, a legal expert has said.
Key points :
- Comedian Jordan Shanks uploaded videos in 2020 containing racial slurs about John Barilaro
- The Federal Court found that Google had not taken responsibility for its conduct as a publisher.
- Legal expert says constant libel cases by politicians could have negative consequences
Yesterday Google was ordered to pay Mr Barilaro more than $700,000 over ‘vulgar’ and ‘racist’ videos posted to YouTube in 2020 by comedian Jordan Shanks, better known as FriendlyJordies.
Mr Barilaro had repeatedly asked Google – which owns YouTube – to remove the videos, but the company did nothing.
The Federal Court decided to remove the normal “cap” on defamation damages – which currently stands at around $425,000 – and instead ordered $715,000 in punitive damages for Mr. Barilaro.
Although it has been established for some time in Australia that publishers are responsible for the content they host, Google has not accepted this, says Michael Douglas, a litigation lawyer and law scholar.
“Google has been working around the world to argue that it’s not responsible for things on its various platforms…and that the courts shouldn’t shoot the messenger,” said the lecturer at the University of Western Australia.
“But just because Google wants it to be, doesn’t mean the law reflects that position. »
FriendlyJordies uploaded two videos as part of what Judge Steven Rares called a “racist campaign” against Mr Barilaro. One was called “bruz”, the other “Secret Dictatorship”.
They called Mr Barilaro ‘fat’, inferred he had mafia connections and ultimately – the former deputy prime minister told the court – drove him to have suicidal thoughts.
Mr Barilaro said the impact of the publications was also the main reason for his resignation in 2021.
Outside court yesterday, an emotional Barilaro said he felt vindicated and was happy the trip was over.
“The reality is that it’s unfair. For the little guy there, and I see it every day, they don’t have a chance to defend their name and go to court,” he said.
“I’m glad that on record, now it’s clear that Google allowed this to happen, I had been defamed. »
Direct hate speech is against Google’s own terms of service and is one of the main reasons Justice Rares has been so scathing towards the corporate giant.
“What this case does is remind Google that it needs to take threats of legal action very seriously,” Douglas said.
“Google was expressly notified that these videos were online and took no action, and that failure is really at the heart of why Google suffered such a loss here. »
Mr Douglas said the company might have been able to save itself some embarrassment had it chosen a different legal strategy that did not attempt to “wear down Mr Barilaro”.
Google first pleaded a series of defenses, including honest opinion and qualified privilege, which Judge Rares called “patently hopeless.”
Eventually, the company gave up all of its defenses.
“They pleaded those defenses probably to pressure the other side to negotiate some kind of settlement, but that bet didn’t work out and the fact that they ran those defenses was part of the aggravating conduct,” said Mr Douglas.
The case is the latest in a long line of libel suits by politicians, with Opposition leader Peter Dutton and former attorney general Christian Porter recently pursuing their own cases.
Although Mr. Douglas acknowledged Google’s responsibility in the case, he was disappointed that such proceedings had become commonplace.
“I think it’s sad that we tolerate a culture in which it’s okay for politicians to use defamation as a weapon to silence their critics, even when the criticism is unreasonable and even when it’s actually defamatory.“
In his judgment, Judge Rares noted that people in public life must have a “broad back” and be prepared to face harsh criticism, but this does not extend to hate speech or defamation. even if he is a high level politician.
However, Douglas says it’s important to strike the right balance and not “overcook” it.
“Millions of Australians depend on Google and it provides invaluable access to information, if we push it too far in search [it] Responsible for every little thing we find offensive, we may come to a point where some of the benefits of the modern age are lost on Australians.
However, this saga is not quite over for Google or Mr. Shanks.
They were both referred to the senior court clerk for potential contempt, linked to another video from 2021, simply identified by a tongue emoji.
The court found that the video had attempted to intimidate Mr. Barilaro and his lawyers into dropping the case and had in fact had the desired effect, as Mr. Barilaro had asked his lawyers to settle with Google, before changing my mind.
Mr Douglas said it was serious because the courts must protect the democratic rights of all citizens to sue.
“So it could have quite serious consequences in the near future,” he said.
The ABC sought comment from Google, but did not receive a response by the deadline.
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