The Federal Court, per Rares J, found for John Barilaro in Barilaro v Google LLC [2022] FCA 650 for defamation by means of posts on YouTube and awarded him $715,000.

FACTS

The publications complained of were two YouTube videos prepared by a Mr Shanks:

• bruz, first uploaded on 14 September 2020.  The contents are described in great detail at [33] – [63]; and
• Secret Dictatorship, first uploaded on 21 October 2020 [3].  It is described in great detail at [81] – [91]

The imputations pleaded in bruz video was that:

(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].

The imputations pleaded in Secret Dictatorship video was that:

(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].

On 25 November 2020 Barilaro’s chief of staff, McCormack, contacted Google Australia’s manager to complain about the racist and untrue content of friendlyjordies videos [129].  On 30 November 2020 Barilaro’s social media manager made a formal complaint to YouTube about the allegations of corruption, and other matters, against Barilaro [31].  When Google did not act, McCormack emailed Google on 1 December 2020 expressing concern that the videos had gone beyond what was acceptable and asking for matters to be “progressed through appropriate channels” [132].  Early on 2 December 2020 McCormack provided Google with URL links to 11 videos.

On and from 22 December 2020 Google became liable as a publisher of each of the bruz, Secret Dictatorship and other then existing friendlyjordies videos that affected Barilaro [137].

 On 22 December 2020, Barilaro’s solicitors (Mark O’Brien Legal) sent a letter to each of Google and Shanks complaining of the “indefensibly racist and defamatory campaign that Shanks had engaged in” against their client on his YouTube channel (the 22 December letter). The letter identified 10 videos, including bruz, The Italian Job, Secret Dictatorship, SUPER BARILARO KART and bruzboard. It noted that the bruz video contained the following statements about Mr Barilaro:

1. “… another big, fat, wog cock …”;
2. “… he’s a con-man to the core, powered by spaghetti … “;
3. “… you ball of grease …”;
4. “Let’s look at water theft … seriously though, I think he’s corrupt”;
5. “… /told you he was a dumb f-k …”;
6. “… he wears his corruption as a badge of honour …”;
7. “… John Barilaro aka greasy Ned Kelly …”;
8. “… a man who looks like a Mafia don …”;
9. “… he perjured himself nine times over …”;
10. “… not to draw attention to his Italian heritage … he looks a bit like a meatball …”;
11. “… Giovanni, the greasy little scrotum …”; and
1. “… just a fat, decadent con-man …”.[138]

The 22 December letter pointed out to Google that the contents of the 10 videos breached YouTube’s (publicly available) hate speech, harassment and cyber-bullying policies & demanded that Google immediately remove the videos [139].

On 24 December 2020, Google responded asking for, among other things, the timestamps on each of the 10 videos where the offensive statements appeared [140]. On 12 January 2021, Mark O’Brien Legal provided that detail [142].

On 2 February 2021, YouTube Legal Support emailed Mark O’Brien Legal advising that the videos not removed earlier had been sent for review “for potential harassment or other CG [scil: Community Guidelines]” & later that day, Google’s Trust and Safety Team responded to the Legal Support section saying “we do not find them violating our Community Guidelines” [142].

On 27 April 2021, Google emailed McCormack stating that some of the comments had been removed, but some of the racist ones remained [145]

On 5 May 2021, Ms Frank, of Google, asked the Trust and Safety team again in an email headed to deal with “spammy reviews that seem racially motivated” in respect of Dungowan Estate [175].  The court noted the significance of that email was that, first, the reviews remained online for the previous six months, despite Google’s publicising that it had policies that should have prevented the offensive material remaining online, and, secondly, the note that “the issue is now in the public domain and is affecting trust in our product”, reveals focus of Google’s concern as being about its “product” [175].

On 27 May 2021, Barilaro commenced this proceeding against Mr Shanks and Google [176]. On 31 May, 3 June and 4 June  2021 Shanks uploaded videos regarding the proceeding onto YouTube [176] – [178].

On 9 July 2021, the Court granted Barilaro leave to serve Google in California under rr 10.42 and 10.43 of the Federal Court Rules 2011 [182].

On 25 August 2021, Google filed a defence in which it:

• denied that any of the imputations was conveyed by either matter complained of;
• pleaded that the bruz and Secret Dictatorship videos were published under qualified privilege pursuant to, first, the implied freedom, secondly, the common law and thirdly, s 30 of the Defamation Act;
• pleaded pursuant to the newly introduced s 29A of the Defamation Act that in respect of publications after 1 July 2021, the bruz video concerned a matter of public interest and Google reasonably believed that its publication was in the public interest;
• pleaded pursuant to s 31(3) of the Defamation Act that the bruz and Secret Dictatorship videos were expressions of opinion of a person other than Google rather than a statement of fact, the opinion related to matters of public interest and was based either on proper material or alternatively to some extent on proper material and represented opinion that might be based on that material to the extent to which it was proper material [194].

On 26 August 2021, Mark O’Brien Legal wrote to Ashurst, Google’s solicitors, and, among other matters:

• expressed justified incredulity as to how Google could deny that the bruz video conveyed imputations 9(a), (b) and (c), given that the very words of those imputations are in the video and Mr Shanks had also admitted that they were conveyed;
• disputed that the transitional provisions in the Defamation Amendment Act 2020 (NSW) (the Amendment Act) allowed Google to plead the new defence of public interest under s 29A;
• explained, correctly, based on Lange [1997] HCA 25; 189 CLR 520, that the plea of common law qualified privilege was hopeless [195].

Prior to and after the issuing of proceedings Shanks published videos on YouTube.  He even published videos after Barilaro had settled with him.  The court described those incidents in detail.

On the first day of the trial Google abandoned its denials that the matters complained of conveyed the imputations [253].

DECISION

Google argued that:

• iit is not liable for any harm that Barilaro suffered either:
  • in the period between 14 September 2020 and 21 December 2020 (the pre-publication period) or caused to him as it was a publisher of the matters complained of; and
  • from 22 December 2020.
• to the extent that Shanks’ uploading of the matters complained of and other videos in his campaign before 22 December 2020 had caused damage to Barilaro’s reputation and emotions, it could not be responsible and that the damages assessed against it should be attenuated commensurately.
• a considerable part of the damage Mr Barilaro claimed to have suffered occurred before 22 December 2020 and that it could not be held liable for that [282].

The court rejected that argument stating:

• a publisher cannot lead evidence of similar or earlier publications for the purpose of establishing that the publisher’s defamatory publication did not cause all of the damage of which the claimant complains in a proceeding for defamation [284].
• where the substantive defence, fails, the fact that the protected statement was made and widely circulated does not avail a publisher in reducing the damages, unless the publisher pleads and proves that the protected statement caused the claimant to have bad reputation [285].
• Barilaro should not have his damages discounted on Google’s erroneous hypothesis that by the time it had notice of the defamatory character of those videos, namely 22 December 2020, Mr Barilaro’s reputation had already been tarnished and his feelings hurt so that it only had to compensate him for any further damage to his reputation or feelings [288].
• from 22 December 2020, Google was aware of all of Shanks’ videos attacking Barilaro then uploaded on YouTube and the contents of new ones [290]
• Google’s conduct in allowing and maintaining uploads of those videos made it a publisher of them as much as Mr Shanks[290]

General damages

The Court stated that:

• The purpose of awarding compensatory damages is to provide:
  • , first, consolation to the claimant for the personal hurt and distress that the publication caused him or her to suffer,
  • secondly, reparation for the damage done to his or her reputation and, thirdly, vindication of that individual’s reputation. The sum awarded must be, at least, the minimum amount necessary to signal to the public the vindication of the claimant’s reputation [292].
• s 34 of the Defamation Act requires the amount of damages (both compensatory and aggravated) to reflect an appropriate and rational relationship between the harm that is done to the claimant and the quantum of the award [293].
• under s 35(1) and (3), the current maximum sum of compensatory damages that can be awarded to Barilaro for non-economic loss is $432,500 [293].
• the Defamation Act did not cap Mr Barilaro’s entitlement to be awarded more than that amount if, in all the circumstances of the publication of a matter complained of, a court finds that an award of aggravated damages is appropriate [293]
• Barilaro’s right to bring this proceeding accrued before the Amendment Act commenced and that it is not necessary for me to separate the award of damages & this is a most serious case [294].
• the matters complained of resulted in Barilaro being driven prematurely from office, so that the judgment sum, necessarily, will have to reflect the very substantial damage done to his feelings, his reputation, the need to nail the lie and to vindicate him to the public [294].
• in assessing general damages the Court is entitled to look at the whole of the conduct of the publisher from the time of publication to the time of the verdict [296]
• the mode and extent of publication, the fact that the defamatory statement was never retracted, the fact that the publisher never offered an apology and the fact that the defamatory statement “had been persisted in to the end” [296].
• the award must also have regard to the “grapevine effect” of the publication complained of so as to ensure that the claimant recovers an appropriate amount of compensation [297]
• the claimant can lead evidence of some occurrences after the publication of defamatory matter that are relevant to damages, including aggravated damages[298]

The court was satisfied that:

• Barilaro was profoundly hurt by both the bruz video itself, through its inherently racist, spiteful and vituperative content, and also by Google’s deliberate decisions to continue making it and the Secret Dictatorship video available on YouTube from 22 December 2020 to 5 and 7 November 2021 [300].
• the Secret Dictatorship video also left Mr Barilaro dumbfounded and angry. He felt Mr Shanks’ obvious spite and malice in uploading it on the day he (Mr Barilaro) returned to his Parliamentary duties after taking a month’s mental health leave saying that Mr Shanks “hit me when I was most fragile” &  was deeply hurt by Google leaving it available on YouTube for nearly 11 months after he had sought its removal [301].
• the damage suffered by  Barilaro in his reputation and feelings caused by the matters complained of and in all the circumstances, leaving to one side any aggravating factors, requires a very large verdict because it is a most serious case however, that award must include compensation for Google’s aggravation of the damages.
• the relentless campaign of racial vilification, hate speech and the publication of the defamatory imputations each matter complained of conveyed, drove Mr Barilaro prematurely from his office of Deputy Premier and out of the public life as a member of Parliament to which he had sought to contribute and in which he had achieved both high office and the recognition of those in his community and in the State for the contribution that he had made [309].

Aggravated damages

Barilaro sought aggravated damages based on the following six matters:

(1) Google’s initial failure in late December 2020 to remove the two matters complained of (the initial inaction issue).

(2) Google’s continuing failure to remove the matters complained of despite its knowledge of Mr Shanks’ ongoing campaign of harassment and abuse (the ongoing inaction issue).

(3) Google’s failure to remove the videos by no later than the first day of the trial when it had abandoned all its defences (the recent inaction issue).

(4) Google’s conduct of the proceeding (the general conduct issue).

(5) Google’s failure to apologise (the apology issue).

(6) Google’s improper cross-examination of Mr Barilaro (the cross-examination issue).

Regarding aggravated damages the court stated:

• they are compensatory, not punitive.
• they involve conduct of a tortious wrongdoer that is improper, unjustifiable or lacking in bona fides which can increase the harm done to the injured party so as to require a larger award of damages [311].
• the conduct of the publisher in a defamation action, including in the way in which it defends the proceeding itself, can increase the harm done if that conduct crosses the line of what is proper, justifiable or bona fide [311]
• conduct which may support a claim for “aggravated” damages, includes:
  • a failure to make any or any sufficient apology and withdrawal;
  • a repetition of the libel;
  • conduct calculated to deter the plaintiff from proceeding;
  • persistence, by way of a prolonged or hostile cross-examination of the plaintiff or in turgid speeches to the jury,
  • in a plea of justification which is bound to fail;
  • the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract further wide publicity; and
  • persecution of the plaintiff by other means [312].

(emphasis added)

• this class of damage is additional to and distinct from ordinary compensatory damages to which a claimant may be entitled as a result of the publisher conducting a failed but bona fide defence [313].

In relation to this proceeding the court that:

• Google had no reasonable basis under its policies for leaving up the videos then posted online after 22 December 2020 or allowing the subsequently posted ones to be there, including the edited versions of the matters complained of [344].
• each of Google’s initial inaction from late December 2020 and its subsequent continuing failure to remove the matters complained of and other videos in Mr Shanks’ ongoing campaign of harassment and abuse has aggravated the damages very substantially [349].
• Google’s denial that the matters complained of conveyed the imputations which Mr Barilaro alleged was unjustifiable [352]. The Court found that each imputation was as plain as day.
• Google gave no explanation for its pleaded denial that imputations 9(a)–(e) were conveyed by the bruz video. I infer that the pleading was known by it to be untenable. It was doomed to fail and an abuse of the process of the Court [354]
• Google’s pleaded denial that imputations 15(a)–(c) were conveyed was equally hopeless [355] – [358]
• raising and maintaining of an untenable defence is calculated to cause pointless delay to the resolution of the proceeding and expense to the parties [361].
• Google’s belated abandonment of the denials revealed, the other five imputations were clearly conveyed by each of the bruz and Secret Dictatorship videos, as the editing that Mr Shanks performed under his settlement with Mr Barilaro reinforced [363].
• Google’s pleading of a defence of qualified privilege at common law was also unjustifiable as:
  •  there could not have been any reciprocity of duty and interest between it, as publisher of content on the YouTube platform, and the mass audience to warrant its communication of the matters complained of
  • except in limited circumstances, a claim of qualified privilege will fail where a publication is made to a large audience because, ordinarily, the publisher will not be able to establish that it was using the occasion honestly and without malice for the purpose of publishing the defamatory matter to all of the recipients.
• YouTube operates indiscriminately in making uploaded videos available to all and sundry usually (but not in this matter on and after 22 December 2020) without even knowing what is in them, unless a complaint is made that, as here put it on notice of the potentially defamatory character of the publication [365].
• Google’s conduct was unreasonabl as it did not intend to convey, and had no belief in the truth of any of the imputations [368].
• Google made no attempt to seek, let alone put, Barilaro’s side of the various subjects on which he was attacked and there was no conceivable reason to suggest doing so was not practicable or unnecessary [368]
• Google could not have established that there was proper material for defending the bruz video as Mr Shanks’ honest opinion in respect of other aspects [372].
• Google’s pleading of the new defence under s 29A of the Defamation Act, introduced on 1 July 2021, was equally hopeless [376].
• Google failed to apologise. A mere failure of a publisher to apologise, without more, is insufficient to amount to an aggravation of damage [391]
• Google’s cross-examination of him in asking whether Mr Shanks’ allegation that he had lied in his evidence to ICAC was improper and unjustifiable [397].

The court made strong concluding remarks stating:

• 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 Barilaro’s complaints.
• Google had no defence to Barilaro’s claim that each of the matters complained of conveyed the defamatory, very serious and false imputations on which he relied.
• Google dragged the litigation out by pleading defences that had no prospect of succeeding, causing Barilaro added distress, damage to his reputation, and delay to his vindication. Google encouraged and facilitated  Shanks in his vitriolic, obsessional, hate filled cyberbullying and harassment of Barilaro both before and after  Shanks settled the defamation claims against him [402]
• while 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 Shanks’ campaign described above  Google chose to continue publishing that material [403]
• Google 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 Shanks’ obviously obsessional campaign [403].
• Google’s publication of the matters complained of drove Mr Barilaro prematurely from his chosen service in public life and traumatised him significantly [404].

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 Barilaro’s reputation

the Court found Barilaro was entitled to judgment in the sum of $675,000 and prejudgment interest from 22 December 2020 of $40,000 [405].

ISSUE

There was a lack of coherence in Google’s defence.  In face of a complaint as to quite extreme videos Google sat on its hands and ultimately found the contents were not racist or harrassing.  They were. As publisher Google put itself into danger by keeping the videos on YouTube for long after it was put on notice as to their contents.

Googles internal processes in considering the complaints made and the videos themselves were letheragic and quite reckless given the law in Australia.

The denial of the imputations was another curious decision by Google.  Given the statements contained in the videos the imputations almost wrote themselves.  Given the lack of material with which to run an assertive defence and the extraordinary claims made against Barilaro it is little wonder that the Court awarded aggravated damages.  In a sense it is an example of how not to run a case as a publisher.