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

• Published date: 06 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Libel & Defamation
• Law Firm: Kennedys
• Author: Jeremy Marel and Nathan Buck

A two-part analysis of the recent decision of Barilaro v Google LLC [2022] FCA 650

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...