Google and Defamation- Barilaro v Google LLC [2022] FCA 650

I recently read the case John Barilaro (former Deputy Premier of NSW) brought against Google. The action related to Youtube clips which were allegedly defamatory against the former politician. I have to admit I found this case fascinating…yep all 102 pages of it!!

I am constantly hearing about Youtubers from my 10-year-old son. I have even been sucked into buying their ‘merch!!’ My son appears to spend a ridiculous amount of time listening to very loud teenagers shouting at a video game they are playing…. I must admit to being perplexed by this phenomenon- why would anyone in their right mind want to watch someone else play a computer game??? Alex assures this is a common practice and when I looked up the net worth of some of these Youtubers- he was clearly not mistaken!!

Anyway- I digress… the Barilaro case came about as a result of videos and commentary which was broadcast by Jordan Shanks who runs the ‘Friendly Jordies’ Youtube channel. Shanks also sold ‘merch’ relating to Barilaro- ie ‘Bruz’ t-shirts and some ‘outrageous’ key rings!! The Youtube channel at the relevant time had 420,000 subscribers.

On one hand, as politicians are in the public eye, you could argue that being ridiculed comes with the territory! This may be so, but in my (and Justice Rares’) opinion, comments and humour can go too far! The comments made by Jordan Shanks were racist in nature, made several imputations about Barilaro’s moral character and the attacks took place over a long period of time… According to the case facts, these posts also led people to publicly and personally attack Barilaro in front of his young children.

You may be thinking- how did Google get involved with this case- shouldn’t Shanks be the defendant?? Let me explain… Barilaro and his political advisors became aware of Shanks’ material on Youtube and they complained about the content directly to Google. Note that Google owns Youtube.  Google failed to act and left the material on their site for many months after becoming aware of the offending material.

Google tried to justify their action/or inaction and originally pleaded a number of defences. Some of the defences included qualified privilege- arguably the ‘Bruz’ video concerned a matter of public interest. Another defence that was pleaded- but later abandoned by Google was ‘honest opinion.’ None of these defences were accepted by Justice Rares.

Rares J noted:

‘Politicians and those in public life must expect that their conduct and policies be open to public scrutiny and criticism, including vehement disagreement. But that does not give critics, opponent or members of the public who disagree with the politician’s or public figure’s policies or are critical of his or her conduct or performance of their role, a licence to engage in a torrent of gratuitous slurring, stereotyping, name-calling, or threats of violence not only the personal safety of that person, let alone his or her partner or children.’ (at 213)

Before Barilaro v Google LLC [2022] FCA 650 was heard, Barilaro settled the matter with Jordan Shanks. Shanks was ordered to pay $100,000 (Barilaro’s costs) and was asked to take down some of the offending material. He also had to issue a formal apology. When reading the case though…it was at least insinuated that Shanks did not necessarily take these orders particularly seriously…

In relation to Google’s liability, Barilaro argued successfully, that these attacks led him to leave public office prematurely. Rares J noted this ‘this is a most serious case….the judgment sum, necessarily, will have to reflect the very substantial damage done to his feelings, his reputation…’ He received a total of $715,000 in damages from Google.

Perhaps the key aspects of this judgment are as follows:

• The fact that google was told about the offending material and failed to take it down, helped establish their liability,
• Google generated revenue from the videos – ‘Google did not appear to take the application of its policies seriously, no doubt because Mr Shanks was very popular and YouTube publications, such as this, earned Google revenue.’ (at 332)
• Google’s failure to apologise aggravated (increased) the damages awarded

It will be fascinating to see what happens in the coming months…..