YouTuber's proposed defamation defences knocked down by Parliamentary privilege

Given its 2.3 billion users in 2021, attracting and maintaining an audience on YouTube requires setting yourself apart. But as comedians push boundaries, some caution should still be taken as defamation proceedings remain a threat from those who feel unjustly targeted.

Such is the situation faced by popular Australian political commentator and comedian Jordan Shanks-Marokovina (AKA Friendlyjordies), who is being sued for defamation by NSW Deputy Premier John Barilaro over statements he made about Mr Barilaro in two videos posted in September and October 2020.

In a preliminary hearing for the case, Mr Shanks sought to have two of the alleged defamatory imputations struck out from Mr Barilaro's claim as an abuse of process, arguing that if they remained he would be inhibited by Parliamentary privilege from defending the statements.

In a significant decision (Barilaro v Shanks-Markovina (No 2) [2021] FCA 950) Justice Rares refused the strike-out application, instead finding Mr Shanks could not plead defences with the effect of infringing Parliamentary privilege.

What led to the defamation claim by Mr Barilaro?

Mr Barilaro filed proceedings in May 2021 in response to videos posted by Mr Shanks on YouTube entitled "bruz" and "Secret Dictatorship". The videos are alleged to contain eight defamatory imputations, being that Mr Barilaro:

• is a corrupt conman;
• committed perjury nine times;
• has so conducted himself in committing perjury nine times that he should be goaled;
• corruptly gave $3.3 million to a beef company;
• corruptly voted against a Royal Commission into water theft;
• has acted corruptly by engaging in the blackmailing of councillors;
• has acted corruptly by engaging in the blackmailing of councillors using taxpayer money; and
• has pocketed millions of dollars which have been stolen from the Narrandera Shire Council.

In response, while Mr Shanks admitted that his videos conveyed a number of defamatory imputations concerning Mr Barilaro (including nine occasions of perjury that warranted gaol), he intended to argue that the imputation about perjury was substantially true, and that the associated imputation that Mr Barilaro should be consequently gaoled was his honest opinion, based on proper material.

To support these defences, Mr Shanks wanted to establish that Mr Barilaro had appeared before a Parliamentary committee of the New South Wales Parliament and had committed perjury on the alleged occasion by "telling the New South Wales Parliament that he did not personally sign off on a deal to give taxpayers' money to a company run by his friend".

Mr Shanks was aware that this created a problem for him because it meant he would be asking the court to inquire into something said in Parliament, which would run smack bang into Parliamentary privilege. To understand why, and how he tried to get around this obstacle, we need to take a detour into the late 17th century.

What is Parliamentary privilege, and how can it stop arguments from being made in Court?

Parliamentary privilege is a function of the separate constitutional roles of parliament and the courts which enables those institutions to go about their business without being subject to outside interference or control. This privilege has been recognised as demarking the exclusive jurisdiction of Parliament over its own processes from the jurisdiction that the judiciary might otherwise have.

Parliamentary privilege includes a protection originally espoused in Article 9 of the Bill of Rights 1688 (Eng) which applies to proceedings in all Australian Parliaments (including in New South Wales, by force of the Imperial Acts Application Act 1969 (NSW)). This protection prohibits anyone impeaching or questioning in any court, or any place out of Parliament, the freedom of speech, debates or proceedings in Parliament, including any Parliamentary committee.

In Shanks, Justice Rares noted that the "essence" of Parliamentary privilege as noted in Mundey v Askin [1982] 2 NSWLR 369 was that what is:

"said or done in Parliament in the course of proceedings there could not be examined outside Parliament for the purpose of supporting a cause of action, even though the cause of action itself arose out of something done outside Parliament. The reason for its exclusion is, no doubt, to prevent any inquiry into the motives or intentions of Members of Parliament in anything they said or did in the House." [emphasis added]

He also noted that Courts have recognised the need to balance this principle with the public interest of ensuring that proceedings in Parliament can be discussed in public and with freedom of speech, expression of opinion and the ability of persons affected by what is said under the privilege to clear their reputation.

Parliamentary privilege meets defamation defences

So, Mr Shanks needed to contend with Parliamentary privilege to move forward with his defences. He therefore applied to the court to have Mr Barilaro's complaints about these statements struck out on the basis that if Parliamentary privilege was not waived and he was precluded from advancing evidence in support of his defence, it would make the trial of these two imputations manifestly unfair since he could not then prove to the Court, as he would wish to do, that Mr Barilaro had committed perjury on nine occasions as alleged. He submitted that if a strike out did not occur, it would discourage free reporting on members of Parliament or others who had told falsehoods during Parliamentary proceedings, because a publisher sued by that parliamentarian or other person would always be barred by the absolute privilege, afforded by Art 9 or section 16(3) of the Parliamentary Privileges Act, from pleading a defence of substantial truth or proper material for a defence of honest opinion where such a defence otherwise would be available.

Mr Barilaro opposed the strike-out application on the basis that it would be unfair for Mr Shanks to be able to make those serious defamatory statements with impunity by using Parliamentary privilege as a shield.

After considering the occasional exceptions that have applied to the strict application of Parliamentary privilege, Justice Rares concluded that no exception was applicable in this case. No strike-out was granted and Mr Shanks was not given leave to file a defence that contained a plea that would involve impeaching or questioning of proceedings in Parliament before the Court.

A defence or particular of justification that impeaches or questions the veracity, purpose or motivation of a party or witness in proceedings in Parliament is not justiciable because of the operation of Article 9 of the Bill of Rights as adopted in Australia. It therefore remains a matter for Parliament alone to examine and adjudge whether what has occurred in proceedings within it should have any legal consequences.

Justice Rares rejected Mr Shanks’ argument that Mr Barilaro had an onus to seek that the New South Wales Parliament pass legislation waiving its privilege under Art 9. First, the privilege belongs to Parliament, not Mr Barilaro. Secondly, Mr Shanks published the bruz video" in the manner of his choosing and Mr Barilaro did nothing to contribute to Mr Shanks’ choice of what he published or how he expressed himself. The bruz video was not a spontaneous or unprepared publication.

In the circumstances, it was "difficult to see how it is unfair that Parliamentary privilege will prevent Mr Shanks from relying on [the] defences". The court therefore sided with Mr Barilaro in finding that "it would be unfair to deprive Mr Barilaro of the right to vindicate his reputation that Mr Shanks attacked".

Mr Shanks' application to strike out the imputations relating to Mr Barilaro's alleged perjury was rejected and he was given leave to file an amended defence that omitted those defences.

In a further blow to Mr Shanks, Justice Rares also subsequently dismissed his application for a jury trial having regard to the complexity of the matter and the possibility of COVID-19 restrictions affecting in person hearings.

Key takeaways for future defamation plaintiffs and defendants

This case serves as a useful reminder of the impact that absolute privilege may have when conducting litigation. It is absolute. In the case of Parliamentary privilege, it is a matter for Parliament to adjudicate and waive, not the courts.

It is always important to consider the scope of the imputations you make when publishing matter, including even tweets or posts that may impact someone's reputation.

Where a publisher has time to consider the language that will be used by them in attacking another, it will certainly repay effort to choose or use language in a manner of expression that will allow them to defend the imputations created under either the constitutional freedom, common law or statutory qualified privilege or as honest opinion (or fair comment) on a matter of public interest.

With these alternative defences available, the court will not easily find that it is unfair that Art 9 prevents a person from proving the substantial truth of their choice of what they said and how they said it.