Contempt, defamation, and the dissemination of online ‘poison’: part two

In part two of our analysis of Barilaro, we explore some of the interesting and topical questions raised by the decision at a time when Australian defamation law reform is ongoing, including as to corporate social responsibility, the extent to which online platforms like Google should be liable for defamatory publications uploaded by third parties, and the limits which should be imposed on our freedom to express opinions about those in public office.

In June 2022, the Federal Court of Australia delivered judgment in Barilaro in which:

• Google was ordered to pay Mr Barilaro $715,000; and
• Google and Jordan Shanks-Markovina (aka ‘friendlyjordies’) were each referred to the Principal Registrar to consider whether to institute proceedings against them for what, it was said, appeared to be serious contempts of court.

To read about the circumstances leading up to the Barilaro judgment, click here to read part one of our analysis.

Google’s liability as a ‘publisher’

For over a decade, ‘internet intermediaries’ such as Google have been held liable for third party publications.

In Barilaro, Google had attempted to distinguish between its position and that of Mr Shanks, because, it said, it was “not the creator of the content”. 

That submission was found to have been untenable. 

There was no question that Google’s conduct - in encouraging, facilitating and maintaining uploads of the videos – made it a publisher of them as much as Mr Shanks. 

The videos should have been removed on that basis – that they were plainly defamatory and that Google was liable for them.

They also should have been removed by reference to Google’s own policies.

Google was found to have held itself out as having policies which applied to regulate content posted on YouTube and which protected, and would be used to protect, individuals or groups of individuals who might be disparaged or harassed or made the subject of hate speech and vilification.

But even the most robust policy is useless if it is not applied.

The Court found that the maintenance of Mr Shanks’ videos online “show that 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 his, earned Google revenue”.

Justice Rares seems to have viewed Google’s decision to leave the videos online as a sort of Faustian bargain - it was willing “to join Mr Shanks” in defaming Mr Barilaro in order to earn revenue.

Contempt

And as Google earnt revenue, Mr Shanks attacked not only Mr Barilaro but also his legal representatives.  For example, a video in December 2021 – during the proceedings - attacked the integrity of Mr Barilaro’s lawyers (without “any factual or intelligible basis to do so”).  This was a “splenetic and vindictive public attack”, calculated to intimidate Mr Barilaro and his representatives.  It was an attempt to bring improper pressure to bear on each of them. 

Google was aware of the videos, and did not remove them, and accordingly it and Mr Shanks were referred to the Registrar to consider whether to institute contempt proceedings against each of them for what appeared to be serious contempts of court.

Enforcing the judgment

Much has been made by some commentators as to whether Google, as a foreign corporation, will actually comply with this judgment.

Although the judgment may not be enforceable in the United States because of the collective effect of the First Amendment of the US Constitution, s.230 of the Communications Decency Act 1996 (US), and the Speech Act  2010 (US), we are not aware of an example of a US judgment debtor operating in Australia availing itself of these domestic protections.  In theory, Google may be free to do so, and to require Mr Barilaro to seek to enforce the judgment in the US.  Decisions would naturally follow for the Commonwealth regarding the consequences of foreign corporations such as Google, which do significant business in Australia, defying Australian Courts.  The Commonwealth has already shown a willingness to impose Australian laws on ‘big tech’ entities, leading the world in forcing Google and Facebook to pay Australian news organisations for using their content.  Google’s ongoing compliance with Australian law as part of the price of doing (a booming) business in Australia seems uncontroversial to us.

Defamation law reform

The Barilaro judgment is well-timed.

It has been published within six months of the announcement by the former Commonwealth Government, in December 2021, of a proposed Social Media (Anti-Trolling) Bill, which was widely criticised by defamation experts.

We have previously written about that Bill – here and here.

And as Kennedys senior partner and recognised leader in defamation law, Patrick George, has written - here –the Barilaro case has exposed the Bill to be “hopelessly flawed and unfit for purpose”. 

With the change in Government, it can only be hoped that the Bill will not be revived.

Meanwhile, ‘Stage 2’ of the review of Australia’s Model Defamation Provisions is still ongoing. 

One of the focusses of Stage 2 is the question of the ‘internet intermediary liability’ for third party publications online.  Barilaro makes clear, we think, that intermediaries like Google should have a responsibility to avoid causing harm on their platforms.  They should have a responsibility to protect our reputation and uphold community standards.  Obviously Mr Shanks is also to blame, and primarily so, for having created the content in the first place.  But, as Justice Rares observed, he “needed YouTube to disseminate his poison”.  His videos could not have had the effect they did – they could not have been published as widely as they were – without being encouraged and facilitated by YouTube (the second most visited website in the world, after Google). 

The ‘right’ to criticise politicians

It is undoubtedly a critical feature of a healthy, liberal society such as ours that we be able to communicate freely, exchange ideas and information, and express our views and opinions. 

Mr Shanks’ YouTube channel has more than half a million subscribers.  For his followers, perhaps, he is an ‘independent journalist’ who seeks to make political commentary engaging and humorous.  No doubt there is value in this.  And to the extent he expresses his views robustly or even provocatively, there is nothing in itself wrong with that.

At least in theory, the law should not distinguish between opinions which are disrespectful or respectful, heterodox or orthodox, ‘moral’ or ‘immoral’, popular or unpopular (see Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 per Kirby J (in dissent), as quoted in Dutton at [84]). Politicians, in particular, must expect they will be subject to public scrutiny. 

That scrutiny may well be crude, emotive or insulting rather than logical or intellectual, ‘personal’ instead of purely ‘political’.

The cases recognise this.  As was said in Hanson-Young at [78], ordinary reasonable people will “take into account that political discourse can be robust and that personal denigration in the cut and thrust of politics is not uncommon”. Many people will also have their own, often firmly-entrenched, political views and will not be influenced, positively or negatively, by statements about a politician about whom they have already formed a view (see Dutton at [186]).

Even so, there have been many defamation proceedings by politicians – against the media[1], against members of the public[2], and even against other politicians[3].

Politicians may be as entitled to protection from damage to their reputations as any other member of society.  Indeed, as was said in Lange, such protection is “conducive to the public good”.

Our ‘freedom’ of speech is not unfettered. 

One cannot defame without lawful excuse.

This is not, really, a case that could reasonably be said to ‘chill’ or curtail legitimate free speech. 

It is a case in which the dividing line - which separates the right to free speech, on the one hand, from the right to protection of reputation, on the other – has been trampled by Mr Shanks, while Google was content to watch him do so and earn revenue in the process. 

Footnotes

[1] E.g. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Costello v Random House Australia Pty Ltd [1999] ACTSC 13; Conlon v Advertiser-News Weekend Publishing Co Pty Ltd [2008] SADC 91; Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; Mirabella v Price [2018] VCC 650. 

[2] E.g. Dutton v Bazzi [2021] FCA 1474 (overturned on appeal: Bazzi v Dutton [2022] FCAFC 84).

[3] E.g. Rann v Olsen [2000] SASC 83; Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 (upheld on appeal: Leyonhjelm v Hanson-Young [2021] FCAFC 22).