Scales of JUstice

Defamation Law – Google ordered to pay $715K for defamation against former State Deputy Premier

The Federal Court’s recent award to former deputy New South Wales premier John Barilaro’s of $715,000 against Google after they failed to remove defamatory videos from their YouTube platform, originally produced by political satirists the Friendlyjordies, raises a number of legal issues in the area of defamation.

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2022/2022fca0650

Publications

In its judgement delivered on 6 June 2022, Federal Court Justice Steve Rares found the videos to be “deeply offensive, racist and vilifying” and represented a “relentless and vicious campaign” of cyberbullying, which led him to resign from politics earlier than he had intended to, and also caused him significant trauma”.

His Honour found that the videos provoked thousands of “hateful” and “disturbing” social media posts, comments and messages, including one which suggested Barilaro’s daughter should be raped.

Conduct of Google

Tellingly, His Honour throughout referred to the “insouciant” conduct by Google in its dealings with Mr Barilaro – both directly and through its legal representatives and noted that Google did not play a “passive role” earning substantial revenue from publishing the videos in question.

Google initially defended the case first, on the basis the matters complained of conveyed the imputations, secondly, referencing qualified privilege and publication of a matter concerning an issue of public interest and, thirdly, reliance on all of the particulars of proper material pleaded in support of the defence of honest opinion. Those defences were subsequently (and belatedly) withdrawn and Google conceded the videos were defamatory. Accordingly, a four-day trial in March essentially proceeded to determine how much Google should pay in damages to Barilaro.

Award of Damages

The maximum cap on damages for defamation is $432,500 when there are no aggravating features. Barilaro’s lawyers argued that there were many aggravating features, including that it was a “campaign” against the former MP, and that Google’s conduct served to aggravate the damage done. Justice Rares agreed, concluding that Barilaro was subjected to a “relentless and vicious campaign” of cyberbullying that led him to resign from politics prematurely and awarded $675,000 in damages, plus $40,000 in pre-judgement interest.

Consequences for Publishers

In terms of lessons learnt, the case should act as an expensive reminder about how costly the liability can be for secondary publishers – who are usually not privy to the facts behind a publication in the way of a primary publisher – where there is a failure to address, in a timely manner, a complaint made by the subject of published materials.  I discussed a related decision in 2021, when Dylan Voller successfully sued Fairfax Media, Nationwide News, and Sky News Australia for defamatory comments left by third party Facebook users on the Facebook pages of those three media outlets when they published articles about Voller’s time in a Northern Territory youth detention centre on Facebook:

Defamation – Facebook Comments Exposed – An Opportunity for Redress – Ezra Legal

Importantly, Google argued that it was not liable for any harm Barilaro suffered in the period prior to it becoming liable as a publisher on 22 December 2020. They argued that any damages should be reduced significantly since most of the harm to Barilaro caused by the videos would have occurred shortly after they were uploaded in September and October 2020, when the videos received the most views.

But Justice Rares held that “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.”

His Honour said: “Mr 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.”

Whilst on its face the finding that Google was liable for damage caused to Barilaro before the date on which it became liable as a publisher under the law of defamation seems particularly controversial, one might speculate that absent such a finding many claims against secondary publishers – where notice is required and an opportunity provided to remove offending materials – would be rendered pointless.

It is also to be noted that the decision was not required to expressly address the recent changes to the Defamation legislation specifically the additional obligation on Applicants to evidence “serious harm” and the extended public interest defence (Section 29A Defamation Act) the latter which was withdrawn by Google.

This again emphasises the responsibility of owners of social media platforms who can be deemed to be publishers if they continue to maintain something online following notice of defamatory content. Since a secondary publisher only has a reasonable period in which to take down defamatory content after being notified of it, they can become fully liable as a publisher if they fail to do so, and thereby become exposed to a significant claim for damages (even if, as happened in this case, the person aggrieved settles the dispute with the original “creator” of the content).

For more information and expert advice, ask to speak to Special Counsel at Ezra Legal Damian McGrath on (08) 8231 6100 or email dmcgrath@ezralegal.com.au

For information on the range of commercial legal services that we provide at Ezra Legal, head to:

Dispute Resolution – Ezra Legal

Damian McGrath – Ezra Legal

Defamation Reforms – Ezra Legal

Damian McGrath

Special Counsel

Ezra Legal

Damian McGrath

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