Google's expensive courtroom defeat against former New South Wales deputy premier John Barilaro shows the tech giant needs to start taking Australian defamation laws seriously, a legal expert says.
Yesterday Google was ordered to pay Mr Barilaro more than $700,000 over "vulgar" and "racist" videos published to YouTube in 2020 by comedian Jordan Shanks, who is better known as FriendlyJordies.
Mr Barilaro had repeatedly asked Google — which owns YouTube — to delete the videos but the company did nothing.
The Federal Court decided to do away with the normal "cap" on defamation damages — which currently sits at around $425,000 — and instead ordered $715,000 in punitive damages for Mr Barilaro.
Although it has been settled law for some time in Australia that publishers are liable for content they host, Google has not accepted this, says litigation lawyer and legal academic Michael Douglas.
"Google has been at pains around the world to argue that it's not responsible for things on its various platforms … and that courts shouldn't shoot the messenger," said the senior lecturer from the University of Western Australia.
"But just because Google wants that to be the case doesn't mean that the law reflects that position."
FriendlyJordies uploaded two videos as part of what Justice Steven Rares called a "racist campaign" against Mr Barilaro. One was titled 'bruz', the other 'Secret Dictatorship'.
They referred to Mr Barilaro as "greasy", inferred he had associations with the mafia and, ultimately — the former deputy premier told the court — led him to have suicidal ideations.
Mr Barilaro said the impact of the publications was also the main reason behind his resignation in 2021.
Outside court yesterday, an emotional Barilaro said he felt vindicated and was glad the journey was over.
"The reality is that it is unfair. For the little guy out there, and I see it every day, they don't have the opportunity to defend their name and go to court," he said.
"I'm happy that, on the record, now it's clear that Google allowed this to happen, I had been defamed."
Direct hate speech is against Google's own terms of use and this was a key reason why Justice Rares was so scathing of the corporate giant.
"What this case does do is remind Google that it needs to take threats of legal action quite seriously," Mr Douglas said.
"Google was on express notice that these videos were online and it failed to act, and that failure is really at the heart of why Google has suffered such a loss here."
Mr Douglas said the company possibly could have saved itself some embarrassment if it had chosen a different legal strategy that didn't attempt to "wear Mr Barilaro down".
Google initially pleaded a series of defences, including honest opinion and qualified privilege, which Justice Rares called "obviously hopeless".
Eventually the company dropped all its defences.
"They pleaded these defences probably to put some pressure on the other side to negotiate some sort of settlement but that gamble didn't work and the fact they ran these defences at all was part of the aggravating conduct," Mr Douglas said.
This case is the latest in a long line of defamation lawsuits brought by politicians, with Opposition Leader Peter Dutton and former attorney-general Christian Porter recently pursuing their own cases.
While Mr Douglas acknowledged Google's liability in this instance, he was disappointed such proceedings have been becoming commonplace.
"I think it's sad that we are tolerating a culture in which it's acceptable for politicians to use defamation as a weapon to silence their critics, even when the criticism is unreasonable and even when it actually is defamatory."
In his judgement, Justice Rares noted that those in public life must have "broad backs" and be prepared to face harsh criticism, but this doesn't extend to hate speech or vilification, even if they are a high-profile politician.
However, Mr Douglas says it's important to get the balance right and not "overcook it".
"Millions of Australians depend on Google and it provides invaluable access to information, if we push it too far in finding [it] liable for every little thing we find offensive, we may get to a point where some of the benefits of the modern era are lost to Australians."
However this saga is not quite over for Google nor Mr Shanks.
They have both been referred to the principal registrar of the court for potential contempt, relating to another 2021 video, simply identified by a tongue emoji.
The court found the video tried to intimidate Mr Barilaro and his lawyers to drop the case and actually had its desired effect, as Mr Barilaro asked his lawyers to settle with Google, before changing his mind.
Mr Douglas said that was serious as courts must protect the democratic rights of all citizens to bring legal proceedings.
"So this could result in some pretty severe consequences in the near future," he said.
The ABC sought comment from Google but did not receive a response by deadline.
