Major media defendants should consider the lessons from the outcome of John Barilaro's successful bid to sue Google in the Federal Court.

Referring to the recent decision in Fairfax Media Publications Pty Ltd v Voller (2021) 392 ALR 540, the Federal Court has held Google’s conduct in allowing and maintaining uploads of the videos made it a publisher of them, just as much as Jordan Shanks-Markovina (the creator of friendlyjordies). 

The relevant YouTube videos (matters complained of) were called: 

1. bruz, first uploaded on 14 September 2020, and 
2. Secret Dictatorship, first uploaded on 21 October 2020.

The precise imputations are summarised in the decision, and save to note the seriousness of those imputations, we do not repeat that summary here. We further note the relevant publications and imputations, as set out in the judgment, contain strong language and themes, and viewer discretion is advised. 

In finding against Google's continued publication of the videos, His Honour referred to Google's failure to follow its own policies designed to prevent racist attacks, harassment, hate speech and cyber bullying, and remarked:

"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."

His Honour found that Google aggravated the damages suffered by Mr Barilaro "very substantially", including in "its subsequent continuing failure to remove the matters complained of and other videos in Mr Shanks’ ongoing campaign of harassment and abuse", and in its failure to apologise to Mr Barilaro, being held to be unjustifiable. 

Applying the findings in the decision in Nationwide News Pty Ltd v Rush (2020) 380 ALR 432, Rares J found Mr Barilaro was entitled to damages in excess of the cap imposed under section 35 of the Defamation Act, in circumstances where the court determined he was entitled to aggravated damages. 

The new section 35(2B) of the Defamation Act (under the amendments) states an award of aggravated damages is to be made separately to any award of damages for non-economic loss. In this case, the amendments did not apply as the matters complained of were published before the amendments took effect on 1 July 2021 and the Court appropriately ordered judgment in the amount of $715,000, without distinguishing the damages of non-economic loss to aggravated damages.

Under the new amendments, the maximum award is only made in the "most serious case" and continues to operate even where aggravated damages are awarded. Although not strictly relevant to the decision, His Honour remarked to the effect that had the amendments applied that this would be considered a "most serious case", where the maximum award of general damages (currently $432,500) was appropriate. 

Particular criticism (and lessons that should be taken away from the judgment) was directed at: 

1. Google's denial of the imputations, in particular as carried by the bruz video, was untenable and an abuse of the process of the Court, in circumstances where the Court determined the imputations were "as plain as day".

2. Google's defence of qualified privilege, being unjustifiable in circumstances where there was no reciprocal duty between the publisher and the audience, relying on the established principals in Lange (189 CLR), including that qualified privilege cannot succeed if the publication is made to a large or mass audience and in circumstances where Google's conduct was unreasonable, as it had no belief in the truth of any of the imputations.

3. Google's submission that they were "not a creator of the content" and thereby could escape liability was untenable, and against the established principals in Webb (41 CLR). His Honour cites the applicable principles from Webb as follows:

"Every publisher of defamatory matter is equally liable for its publication. His Honour said (at 365) that persons other than the author of a libel “cannot employ the master mind [viz. the author] for the very purpose, accept its suggestions, approve and disseminate its production, and then disclaim its malice”."

4. ​Google's attempt to rely on new section 29A of the Defamation Act (being the new public interest defence) in circumstances where the Plaintiff's claim for liability related only to publications prior to the commencement of Section 29A. In considering the application of Section 29A, His Honour remarks that:

"It would be anomalous if, for limitation purposes, a plaintiff’s or applicant’s cause of action accrued on the date on which publication occurred by the first uploading of the defamatory matter in electronic form, yet a defendant or respondent could defeat that cause of action where the publication remained online after 1 July 2021 by pleading a defence under the new s 29A to a different cause of action, that could not have accrued until sometime after the first uploading had occurred. In other words, Parliament must have intended that the new defence in s 29A would apply only to a cause of action that accrued after s 29A commenced."

5. The fact that Google had been aware of the videos since at least 22 December 2020, and in that regard, encouraged and facilitated friendlyjordies in the vitriolic, obsessional, hate filled cyberbullying and harassment of Mr Barilaro.

The Court was critical in the judgment of the manner in which Google ran its defence, generally finding it was contrary to the overarching purpose (under the Federal Court of Australia Act 1976 Part VB) that litigation be quick, inexpensive and efficient, noting; 

"The raising and maintaining of an untenable defence is calculated to cause pointless delay to the resolution of the proceeding and expense to the parties. Even if to plead such a defence may not be inconsistent with the literal application of procedural rules, it may be manifestly unfair to another party to the litigation or “otherwise bring the administration of justice into disrepute among right-thinking people”: Walton 177 CLR at 393… deep pocketed respondents or defendants cannot be permitted to use the procedural rules to conduct such litigation in a way that raises false or untenable issues contrary to the overarching purpose prescribed in Pt VB."

It is noteworthy that aspects of the conduct referred to in the decision have been referred to the Principal Registrar of the Court to consider whether to institute proceedings against each for what His Honour said appeared to be: 

" …serious contempts of court by bringing improper pressure on Mr Barilaro and his lawyers not to pursue this proceeding."

It remains to be seen whether Google or Mr Shanks will seek to appeal the decision.