In the past two days, two Australian court decisions about online political-satire creators PRGuy17 and friendlyjordies have painfully reminded some of an obvious and boring point: yes, the law applies to the online world, even if sometimes we act like it doesn’t.
In the case of the former, right-wing provocateur Avi Yemini was pursuing the real identity of an anonymous and influential Labor-spruiking Twitter account called PRGuy17, who he claims has defamed him.
Yemini, an Australian working for far-right Canadian media outlet Rebel Media, announced his intention to “unmask” the account in February — suggesting that revealing the identity (or identities) of the people behind the account is an end in itself as well. Yesterday the court ordered by consent — i.e. Twitter and Yemini’s lawyers agreed — that Twitter would hand over the name, email address and IP addresses used to run PRGuy17’s account.
On the latter, this week marked the end of a long-running defamation case filed by former NSW deputy premier John Barilaro against friendlyjordies (the online pseudonym of Jordan Shanks) and Google over two videos published on YouTube that he alleged made defamatory claims about him.
Barilaro and Shanks settled out of court earlier this year. Google, which has been on the hook as the publisher of the videos, did not file a truth defence — meaning that it did not argue that Shank’s claims were true. After progressively abandoning all defences, Google was ordered to pay $715,000 to Barilaro. Federal Court justice Stephen Rares also referred both Shanks and Google for possible contempt of court charges over “improper pressure” on Barilaro and his lawyers to not pursue the claim.
Naturally, both cases have received a lot of attention. The main characters are controversial online partisans who’ve nurtured an audience of dedicated fans (and haters) who are interested in what’s happening. The relative newness of social media makes it feel like this is something novel. However, these court decisions are far from landmark.
University of Sydney law Professor David Rolph told Crikey that court orders revealing the details associated with online accounts as part of defamation proceedings is standard procedure in Australia, like the 2020 case when Google was ordered to hand over the identity of an online reviewer. That Yemini seems to be seeking the identity of PRGuy17 for reasons other than exclusively using it to sue is irrelevant. The decision that the court makes to order the release of such details is whether there’s a reasonable chance that a defamation claim will proceed, regardless of whether proceedings happen or if the claims are found to not be defamatory. Either way in this case, Twitter isn’t being forced — it agreed to divulge such information. Twitter declined to comment.
Google’s big payout was the result of rejecting requests to take down videos that contained claims that, in the end, the company did not even argue in court were true. In Australia, it’s settled law that platforms owned by companies like Google have responsibility for the content they publish. Despite how different they might look, Crikey and YouTube are about equally responsible for the information they disseminate, even if Google doesn’t have the same relationship with its creators as we do with our writers.
Friendlyjordies’ derisive statement after this week’s result points out that Barilaro never had to defend against the claims in court. This is true, but it’s also, unfortunately for him and Google, not the way that defamation works. Shanks made allegations, Google published them, and it’s up to those two parties to prove them if a defamation proceeding is brought forward.
It’s not a freedom of speech issue. There’s nothing stopping friendlyjordies from making the claims that he made in the videos in the future. In fact, if friendlyjordies believes his claims about Barilaro to be correct, he’s free to republish his videos — which Rares said contain “very serious and false” claims — without the edits made as part of his settlement and see what happens. Google clearly didn’t think that it could defend them in court. Ultimately, Shanks agreed to a settlement, paid some costs and apologised.
What is notable about the PRGuy17 and friendlyjordies cases is that they demonstrate how the internet has made it easier to defame someone.
Before the internet, they couldn’t have existed. If PRGuy17 or friendlyjordies wanted to reach as many people as they do, they would have needed to use a newspaper, a radio or television station. Those institutions come with gatekeepers who probably wouldn’t have let them create content like they have — probably losing part of their appeal that has come from creating a direct relationship with an audience — but also would have been another check and balance against potentially defaming someone.
We’re long past the point where the internet can be thought of as a wild wild west, unbound by law. If anything, it is now more treacherous for speech online. Offhand comments in context that once would have been snark with friends are recorded forever as data on foreign servers. Our digital crumb trails means it’s arguably harder to stay anonymous. Saying something online means there’s a good chance it’s tied to you forever.
The final piece of this is whether these two decisions are the way things should be. Few people are shedding tears for Google. The Silicon Valley company’s decision to ignore Barilaro’s request to take down the videos seems foolish, and perhaps one that reflected its American roots where platforms like YouTube aren’t treated as publishers of content created by third parties. With Australia’s robust defamation culture, the company will no doubt be more willing to take down content fearing bearing the consequences of a defamation proceedings.
The former Coalition government’s poorly named social media (anti-trolling) bill could have changed that. The crux of it was that platforms like Google would not be liable if they made it easy to get the name and contact details of people who made online comments. This bill was never passed and so will remain a road not taken but, in light of this week’s Google finding, may be one the company wishes we had.
The second part of this is considering what bar needs to be reached to justify revealing the identity of an anonymous user. Online anonymity is a crucial tool for many but not an absolute right and, in Australia, something that is a run-of-the-mill decision for courts to sacrifice.
What happened here is that Twitter decided to divulge details without waiting for a court to force it or for the claim to be proven to be defamatory — a decision that Samantha Floreani of Digital Rights Watch called “chilling”.
It makes sense that people shouldn’t be able to anonymously spread damaging lies to enormous numbers of people without some kind of recourse. Whether the currently required legal hurdle to unmask someone adequately balances someone’s desire for privacy in 2022 is a subject ripe for public debate.
