Former NSW deputy premier John Barilaro has been awarded $715,000 in his high-profile defamation case against Google, after a judge found he was subjected to a “relentless and vicious campaign” of cyberbullying that led him to resign from politics prematurely.
Barilaro sued the internet giant, which owns YouTube, and political commentator Jordan Shanks in the Federal Court last year over two videos published on the Friendlyjordies channel in 2020 accusing him of corruption.
Former NSW Deputy Premier John Barilaro leaves the Federal Court on Monday.Credit:Jessica Hromas
The first video, bruz, focused on Barilaro for more than 26 minutes and was filmed inside his investment property in the NSW Southern Highlands. The second, Secret Dictatorship, made passing reference to him.
Google agreed the videos defamed Barilaro by wrongfully suggesting he was a corrupt conman who committed perjury, should be jailed for perjury, corruptly gave $3.3 million to a beef company, corruptly voted against a royal commission into water theft, blackmailed councillors and pocketed millions of dollars stolen from a council.
A four-day trial in March was solely to determine how much Google should pay in damages. The tech giant became a publisher of the videos in December 2020, when it refused to remove them.
On Monday, Justice Steven Rares said politics was not for the faint-hearted, but the videos about Barilaro were deeply offensive, racist and vilified him. He said he would refer Shanks and Google to the registrar of the Federal Court for consideration of a possible contempt prosecution, after videos were published which made baseless claims about Barilaro’s lawyers.
“People in public life, like Mr Barilaro, must have broad backs and be prepared to face harsh criticism.”
Rares said one of the videos, which had an “intimidatory purpose”, caused so much stress it almost succeeded in having Barilaro drop the case.
“[They] appear to be serious contempts of court, by bringing improper pressure to bear on Mr Barilaro and his lawyers not to pursue this proceeding,” Rares suggested.
Barilaro’s case against Shanks was settled in November last year when Shanks issued an apology, edited the videos and paid $100,000 in legal costs. Rares observed that Shanks “was not to be quiet for long” and publicly mocked the settlement.
“The law allows a critic to dip his pen in gall for the purpose of legitimate criticism. People in public life, like Mr Barilaro, must have broad backs and be prepared to face harsh criticism,” Rares said.
“But, as in most areas of life, nothing is absolute. The right to criticise is not a licence to vilify, cyberbully, direct hate speech at, or make baseless attacks – on anyone, even a high-profile and controversial politician.”
Rares said the videos conveyed “very serious and false defamatory imputations” about Barilaro, without Google having any belief in the truth of the claims. The internet giant also maintained untenable defences until the trial began, and never apologised to Barilaro.
“Mr Shanks created numerous videos that he and Google published on YouTube in his relentless and vicious campaign against Mr Barilaro,” Rares said.
“He called Mr Barilaro disgusting racist names, including a ‘greasy little scrotum’, [and a] ‘wog’ … and repeatedly called Mr Barilaro corrupt. Although Mr Shanks styles himself as a comedian, his repeated use of such terms was not comedic. It was nothing less than racist hate speech.”
Rares said the videos provoked thousands of “hateful” and “disturbing” social media posts and messages, including one which suggested Barilaro’s daughter should be raped. As a result, Barilaro – who had planned to retire at the 2023 state election – stepped down in 2021.
“The matters complained of drove Mr Barilaro prematurely from his chosen service in public life and traumatised him significantly.”
“The matters complained of drove Mr Barilaro prematurely from his chosen service in public life and traumatised him significantly,” Rares said. “Google did not play a passive role. It earned not insignificant revenue from publishing Mr Shanks’ videos. It could control whether or not they remained available on YouTube, yet it chose to do nothing.”
Rares awarded Barilaro $675,000, plus $40,000 in pre-judgment interest. Costs will be determined at a later date.
Speaking outside court, Barilaro said it had been a long and traumatic journey and all he had initially wanted from Google was an apology and the videos removed. He said legislation “probably hasn’t kept up” with new media and “I think there’s some work to be done federally”.
“It was never about the money,” Barilaro said. “I’m just happy it has come to an end … today I’ve been vindicated.”
In a statement, Shanks said part of his defence had been ruled out due to parliamentary privilege, before he ultimately reached a settlement with Barilaro and was unable to offer any further input in the case.
“Poor old Google left to carry the can,” he said. “I guess they are rich enough to not care.”
Professor David Rolph, an expert in defamation law from the University of Sydney, said the damages were “very substantial”, which was unsurprising in a case which featured numerous grounds of aggravation.
He said it was “not the largest award of damages we’ve seen”, falling somewhere between the amounts awarded to actors Rebel Wilson and Geoffrey Rush.
Defamation reforms which came into effect in NSW in 2021 aimed to clarify how general and aggravated damages are awarded in such cases, in a bid to reduce the size of payouts.
Rolph said “we may still see large overall awards of damages” in the future, particularly when substantial grounds of aggravation are found.
Barilaro’s barrister, Sue Chrysanthou, SC, had called for her client to receive damages “at the top of the range” for the “malignant” videos, which spurred harassment online and in person. She said there had been an extreme level of aggravating conduct in the case, including Shanks selling a keychain depicting Barilaro as a scrotum.
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