DEFAMATION – where matters complained of were videos uploaded on YouTube – where respondent became liable as publisher after being notified of their defamatory content – where respondent belatedly abandoned all defences – where respondent had no belief in truth of matters complained of or imputations – where respondent failed to take down matters complained of and other videos uploaded by creator knowing that they contained defamatory and offensive attacks on applicant and his lawyers – where matters complained of contained racist, hate speech and cyber-bullying material – where matters complained of were part of creator / former respondent’s campaign using multiple videos uploaded on YouTube against applicant – where applicant former Deputy Premier of New South Wales – where respondent’s campaign drove applicant prematurely from public office
DEFAMATION – where creator uploaded matters complained of on YouTube before respondent became aware of them so as to be publisher – where many views of matters complained of in period before respondent became liable as publisher – whether damages discounted because of earlier publications when respondent not publisher
DAMAGES – compensatory and aggravated damages – where defamation a most serious case – where matters complained of were racist, hate speech and cyber-bullying – whether publisher’s conduct improper, unjustifiable or lacking in bona fides – where respondent published and failed to take down further racist, hate speech and cyber-bullying videos in campaign against applicant despite maintaining that it had policies against such publications – where publisher persisted in hopeless defences until commencement of trial – where publisher failed to apologise – whether cross-examination of applicant unjustifiable – Held: aggravated damages awarded
CONTEMPT OF COURT– contempt not in the face of Court – where respondent and former respondent published videos calculated to bring improper pressure to bear on applicant and his lawyers to abandon proceeding
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Barilaro v Google LLC [2022] FCA 650
Case
[2022] FCA 650
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Mr John Barilaro brought a defamation claim against Google LLC and Mr Jordan Shanks-Markovina. The dispute centred on defamatory videos uploaded by Mr Shanks on YouTube, which Google continued to host and disseminate. Mr Barilaro, a former Deputy Premier of New South Wales, alleged that the videos contained defamatory, racist, hate speech, and cyber-bullying material that drove him from public office.
The legal issues involved determining whether Google was liable as a publisher after being notified of the defamatory content, whether damages should be discounted due to prior publications, and whether aggravated damages were appropriate given Google's conduct. The court also considered whether Google's actions constituted contempt of court by pressuring Mr Barilaro to abandon the proceedings.
The court held that Google became liable as a publisher after being notified of the defamatory content and subsequently failed to remove it, despite knowing its offensive nature. Google's decision to keep the videos available and its encouragement of Mr Shanks' campaign was seen as improper and lacking in bona fides. The court found that Google's conduct significantly aggravated the harm to Mr Barilaro's reputation and warranted the award of aggravated damages. The court ordered Google to pay Mr Barilaro $715,000 in damages, including prejudgment interest, and referred the conduct of Google and Mr Shanks to the Principal Registrar to consider possible contempt of court proceedings.
Orders
Orders of the court
1. Judgment be entered for the applicant in the sum of $715,000, inclusive of $40,000 prejudgment interest.
2. On or before 14 June 2022 the applicant and respondent file and serve any evidence and written submissions limited to three pages if he or it seeks an order in respect of costs other than that the respondent pay the applicant’s costs, and, in default of any such application, it be ordered that:
2. The respondent pay the applicant’s costs.
3. If either party makes an application pursuant to order 2:
(a) on or before 21 June 2022 the opposing party file and serve any evidence and written submissions limited to three pages in response.
(b) on or before 28 June 2022 the applying party file and serve any evidence and written submissions limited to one page in reply.
4. The conduct of the respondent and Jordan Shanks-Markovina in the evidence admitted at the trial and Court’s reasons for judgment delivered today be referred to the Principal Registrar to consider whether to institute proceedings against each for what appear to be serious contempts of court by bringing improper pressure on the applicant and his lawyer not to pursue this proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
On 28 October 2021, Mr Barilaro and Mr Shanks agreed to settle the issues in this proceeding between them. The settlement involved, among other matters, Mr Shanks taking down to edit each matter complained of so as to remove those parts that conveyed the imputations, making an apology that his senior counsel read in open Court on 5 November 2021, and paying $100,000 in respect of Mr Barilaro’s costs of his unsuccessful applications for a stay of the proceeding and a jury trial. Mr Barilaro’s background Mr Barilaro was born in 1971. In the mid-1960s, his parents had migrated to Australia from Calabria, in Southern Italy. They settled in Queanbeyan. Naturally, Italian was his parents’ first language and to this day his mother’s English is not good. His father was a joinder/carpenter, who died in 2020, and had learnt to speak English to be part of the local workforce. Mr Barilaro’s father worked for a Queanbeyan joinery business for two or three years after arriving in Australia and then started his own business with two partners called Little Joinery that became very successful. Later, his father founded his own company, Ryleho Mouldings and Timber, with a different partner. His father invented, and won a design award, for a pre-hung door system to facilitate fitting doors in a residential home. Mr Barilaro’s mother looked after their four children at home and worked for a company assembling flyscreens. Later she worked as a cleaner at Queanbeyan High School, before and after school hours. Mr Barilaro went to that school until his final two years which he spent at St Edmund’s College in Canberra. He began studying accounting at the University of Canberra but did not enjoy that, despite his parents’ ambitions for him to have a tertiary education. He persuaded his father to let him take a gap year working in the family business. Mr Barilaro said that he started at the bottom and his father worked him very hard, but he loved everything about the work. Mr Barilaro married Deanna and they have three daughters aged 25, 21 and 6 at the time of the trial. His children went (and the youngest daughter still goes) to school in Queanbeyan. Mr Barilaro’s father was an active member of the Queanbeyan community, President of the Multilingual Centre, a board member of the Queanbeyan District Hospital and the Marco Polo Club. Mr Barilaro was inspired by his father’s example. After his father retired in about 1997, Mr Barilaro and his wife bought out the other partner and he became managing director of Ryleho. Mr Barilaro changed the product line to focus on innovative building products including energy efficient windows and doors. He was proud of the success the business achieved. Mr Barilaro said that he followed in his father’s footsteps. He started the Monaro Panthers Soccer Club, involved himself in coaching young persons and sponsored many community groups. He spent a lot of time volunteering to assist in running the Monaro Panthers, in coaching, and he was on the executive in several capacities including as its President. It grew to having about 900 junior players, and about 200 senior ones. There were not enough grounds in Queanbeyan to accommodate the Monaro Panthers’s needs so the Queanbeyan City Council told the club to take the young players to Canberra to train. Mr Barilaro decided to stand at the 2008 Council elections as an independent to remedy the situation. He secured the second highest vote at the election and remained on the Council till 2012. He came to realise that there were limited opportunities at council level for him to deliver what he thought the community needed. He had an interest in State politics “because it was still local”. After approaches by both the Liberal Party and Nationals, he decided to seek preselection in about 2010 as a Nationals candidate for the local state seat of Monaro, then held by a locally popular Labor Government Minister, the Hon Steve Whan MP. He was preselected, campaigned for 12 months and won the seat by 750 votes with a swing of about 8.3% which was lower than the average for the incoming Government because of Mr Whan’s popularity in the 2011 State election.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In my opinion, such an injunction is not appropriate. First, Mr Barilaro did not seek such an order in his pleaded case, secondly, the imputations of which he complains are no longer online as a result of Mr Shanks’ editing of the bruz and Secret Dictatorship videos and, thirdly, if the Principal Registrar brings proceedings for contempt, the propriety of Google’s publication of the rest of Mr Shanks’ obsessional campaign against Mr Barilaro is likely to be considered and the Court will be able to make any appropriate orders in a properly constituted proceeding. CONCLUSION Google made a considered decision to keep the bruz and Secret Dictatorship videos available on YouTube from 22 December 2020, knowing of their content and Mr Barilaro’s complaints. Google had no defence to Mr Barilaro’s claim that each of the matters complained of conveyed the defamatory, very serious and false imputations on which he relied. 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. 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: Voller 392 ALR at 548 [32], 563–564 [104]–[105]; Rush 380 ALR at 517–519 [431]–[434]. It did so with a view to its commercial profit. Google sought to put itself forward to the public as having policies governing the use of YouTube that it would use to protect individuals, including public figures such as senior politicians, from being subjected to racist attacks, harassment, hate speech and cyber bullying. However, despite multiple breaches of those policies that were evident in each of the matters complained of and the other videos in Mr Shanks’ campaign described above, Google chose to continue publishing that material. It published the bruz and Secret Dictatorship videos without any belief in their truth or attempt to ascertain if there were any basis for them, knowing of their wide dissemination on YouTube and their connection to Mr Shanks’ obviously obsessional campaign. Google’s publication of the matters complained of drove Mr Barilaro prematurely from his chosen service in public life and traumatised him significantly. Google cannot escape its liability for the substantial damage that Mr Shanks’ campaign caused: Webb 41 CLR at 364–365. He 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. 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.