Australian courts may not be able to enforce an order that Google pay John Barilaro more than $700,000 in defamation damages because of free speech protections in US law, legal academics say.
Google, the owner of YouTube, was on Monday ordered to pay the former New South Wales deputy premier aggravated damages over a series of defamatory “racist” and “abusive” videos published on the YouTube channel Friendlyjordies.
Federal court justice Stephen Rares ruled that Barilaro had been left “traumatised” by a campaign of “relentless cyberbullying” by comedian Jordan Shanks, who uses the nom de plume Friendlyjordies.
Dr Damien Spry, an expert in social media impacts on politics and diplomacy, says there are a couple of “very powerful” American laws that protect US-based internet companies from defamation penalties.
“The important point is Google can try to ignore the court ruling because US laws provide a shield US companies can use to hide behind,” Spry told Guardian Australia.
“What Google is going to do is the big question, I think.
“It’s quite consequential to agree. If Google abides by the court ruling, and that’s a big if, then they’ve kind of accepted local jurisdiction.
“Obviously, they can afford to pay the money, but they can’t afford to be dragged into court over and over and over again.”
Prof David Rolph, a media law expert at the University of Sydney, said the Barilaro case is the first time in Australia that YouTube as a platform has been held liable for a user’s content.
But what happens next is uncertain because Australian courts don’t necessarily have the jurisdiction to enforce judgments against US-based companies.
“Certainly in the US where these companies are based they have different defamation laws,” Rolph told Guardian Australia.
“The difficulty is that you have these companies that operate throughout the world – that have pervasive technologies and platforms that pervade everyday life – but the question then becomes locally, is that particular multinational entity amenable to a local court’s jurisdiction?
“And even if it is, when there’s a judgement that results from that proceeding, can you enforce the judgement?”
Rolph said Google looked at the content Barilaro complained about and formed a view that there was nothing wrong with it, in line with their policies, and allowed it to stay up.
But the high court in the Dylan Voller defamation case found that publishers could be held liable for allegedly defamatory comments on their social media pages.
“The content policies of those large media companies are informed very much by first amendment values, which creates a tension with the laws that apply in other places around the world like Australia,” Rolph said.
“And so that’s how you can have a situation where Google can look at content and conclude that it doesn’t violate their content policies. Just as Justice Rares looks at it and concludes that it’s very obviously defamatory.”
Barilaro launched legal action against both Shanks and Google over two videos titled “bruz” and “Secret Dictatorship”, claiming they were “vile and racist” and brought him into “public disrepute, odium, ridicule and contempt”.
The claim against Shanks was settled in November last year, with Shanks apologising for any hurt caused, editing parts of two videos and paying legal costs but not damages.
Google initially defended the case, but withdrew all defences and conceded the videos defamed Barilaro.
Spry says one of two things is going to happen in this landmark case. “Google Australia sees itself as being Google Australia and acts as Google Australia, and abides by Australian laws – or Google based in America says nothing and just refuses.”
Justice Rares also referred the conduct of Shanks and Google to the principal registrar of the court to consider proceedings against them for “what appear to be serious contempts of court”.
He said a Friendlyjordies video in December attacking the professional integrity of Barilaro’s legal team was a “splenetic and vindictive attack … calculated to bring improper pressure to intimidate each of them from continuing to act for Mr Barilaro”.
