Poking the bear: taking (or avoiding) action to prevent aggravated damages in defamation claims as a secondary publisher

Publishers are now on notice that aggravated damages for defamation are a very real possibility where they fail to adhere to their own policies or seek to run a baseless defence, following the recent case of Barilaro v Google Inc [2022] FCA 650, in which Google Inc (as secondary publisher) was hit with a $715,000 award.

As the tort of defamation involves strict liability, it is not necessary for a person to have an intention to publish the specific matter in question in order to be liable as a publisher of defamatory content. Owners of social media platforms can therefore be publishers if they continue to keep something online after they were put on notice it might be defamatory. Since a secondary publisher only has a reasonable period in which to take down defamatory content after being notified of it, they can become fully liable as a publisher if they fail to do so, including for the original creator's statement of mind and thereby become exposed to a significant damages claim (even if the person aggrieved settles the dispute with the original "content creator").

It is therefore very important for business to take its own take down policies very seriously because it will be assessed against its own standards as well as the law. If the original publisher cannot defend the claim, it will be very difficult for a platform (eg. Google/YouTube in this case) to do so – and a failure to act may only serve to aggravate the hurt and damage caused.

Mr Barilaro is defamed

Jordan Shanks-Markovina (known online as friendlyjordies) is an Australian political commentator and comedian. In a series of YouTube videos dating back to September 2020, he created a number of YouTube videos making very serious and unfounded allegations against former NSW deputy premier John Barilaro, along with racist and derogatory comments. Mr Shanks invited comments from his viewers, which provoked thousands of abusive, denigrating statements against Mr Barilaro. Mr Barilaro filed proceedings against Mr Shanks (as creator) and Google as publisher, claiming he suffered harm, including online attacks from members of the public, claims which the Court accepted. Mr Shanks conceded that his videos contained a number of defamatory imputations.

Google – via a social media manager for Mr Barilaro – was made aware of 11 videos in particular, and later given their URL links. Its own internal review found that none violated its Community Guidelines or harassment and cyber-bullying policies that covered, among other matters, vulgar language, harassment and cyber-bullying, and hate speech. On 22 December 2020, Mr Barilaro's solicitors wrote to each of Google and Mr Shanks complaining of the “indefensibly racist and defamatory campaign that Mr Shanks had engaged in” against Mr Barilaro. For the purposes of the defamation claim, it was common ground that Google had liability as a publisher of the relevant videos from that date.

Mr Shanks released two more similar videos in 2021, with sentiments echoing those of the videos already brought to Google’s attention. Eventually, Mr Shanks and Mr Barilaro settled their dispute; Mr Shanks then released a new video on 22 December 2021, attacking Mr Barilaro's lawyers and making further allegations against him. Shortly after that video, Google made an offer to settle. But Mr Barilaro’s lawyers were still concerned with what they described as the slurs and false allegations in the video. They also suggested that Google’s conduct in publishing the video may amount to a potential contempt.

Despite attempts by Mr Barilaro to have the videos removed by Google, as at the date of settlement with Mr Shanks, no action had been taken by Google. This left Mr Barilaro's claim against Google as publisher.

On the first day of trial, Google dropped each of its defences. It informed the court that it had misunderstood Mr Barilaro’s position which impacted its public interest defence and gave no explanation as to its other defences. This is perhaps unsurprising, given that:

• Mr Shanks had himself conceded that the alleged defamatory imputations were made by him; and
• Mr Shanks’ reporting was unbalanced and unreasonable in that it made no reference to Mr Barilaro’s published responses or any part of his side responding to the accusations, meaning the defence of common law qualified privilege was likely unavailable.

Accordingly, the judgment became one that needed only to address the issue of damages alone.

General damages vs aggravated damages

The purpose of compensatory damages is threefold:

1. provide consolation to the claimant for the personal hurt and distress that the publication has caused;
2. reparation for the damage done to the claimant’s reputation; and
3. vindication of the claimant’s reputation.

In New South Wales (similar to many other States, such as Queensland and Victoria), section 34 of the Defamation Act requires that the damages (both compensatory and aggravated) reflect an appropriate and rational relationship between the harm done and the quantum of the award. Non-economic loss is capped at $432,500, unless aggravated damages are appropriate.

In contrast to general damages, aggravated damages are compensatory in nature. They do not seek to punish the wrongdoer. Rather, they recognise that improper or unjustifiable conduct on the part of the defendant can increase the harm done to an injured party. While not exhaustive, courts have recognised that improper conduct can include:

• advancing a defence despite a publisher's lack of any ground for belief in it;
• a failure to make a sufficient apology or withdrawal;
• repetition of the libel;
• conduct calculated to deter the plaintiff from proceeding; and
• the general conduct of the trial itself.

In assessing damages, the Court is entitled to look to conduct of the publisher from the time of publication to the time of the verdict. Here, Google’s failure to take down the videos, its conduct of the proceeding and its failure to apologise became a focus of attention.

Failure to remove the videos

The Court rejected Google's arguments that it was unaware of the "smear campaign" and that Mr Barilaro had already suffered harm before it became a publisher. Justice Rares also drew attention to Google's cyberbullying and harassment policies, which appeared to reflect the standards outlined in the Convention on the Elimination of All Forms of Racial Discrimination. He noted the difficulty in reconciling policies which purport to prohibit content which includes racial slurs and hate speech, and the failure to remove videos which, in his words, "[were] replete with racist, hate filled rants that were calculated to bully and publicly hound Mr Barilaro." Justice Rares found the continued publication of the friendlyjordies videos was aggravating, noting that "Those videos compounded the harm to Mr Barilaro’s reputation from the matters complained of and provoked numerous comments from the public so that they can be taken into account without a discount even if they were online before 22 December 2020, including because Google left them there afterwards”. The Court additionally held that Google had no reasonable basis to justify publication of the edited versions of the matters that Mr Barilaro complained of.

The Court rejected an attempt by Google to distinguish its conduct (as publisher) from that of Mr Shanks (as creator), holding that publishers of defamatory material are equally responsible for such content. After it was aware of the impugned content, Google made a deliberate decision to publish the various videos and it therefore became fully liable as a publisher. Its continued failure to act was an act that "very substantially" aggravated damages.

General conduct of the litigation

Although Google abandoned its defences on the first day of the trial, Justice Rares addressed the merits (or lack thereof) of each, observing that each was "untenable".

Failure to apologise

While a mere failure to apologise will not, in itself, amount to an aggravation of damage, the Court considered that in this case, Google's continued publishing of the matters complained (including the hateful comments) added to Mr Barilaro's hurt to feelings, public attacks and injury to his reputation – and the failure to apologise aggravated damages substantially.

Cross-examination Issue

In an earlier video, Mr Shanks had accused Mr Barilaro of lying to ICAC during a hearing. Senior Counsel for Google, careful not to ask Mr Barilaro whether he had lied to ICAC, asked instead whether he understood that the video was putting an allegation against him. After objection from Senior Counsel for Mr Barilaro, the question was withdrawn, but the damage had been done.

The Court held the question was "improper and unjustifiable." (Generally, evidence cannot be elicited, even for the purpose of mitigating damages, which, if proved, would be a defence, unless such a defence has been pleaded. In other words, to ask such a question, Google would have been required to, at least, have pleaded a defence. Since it had abandoned all defences, this was not permitted).

Contempt issue

The Court then turned to consider contempt.

In its concluding remarks, it drew attention to Mr Shanks' continued uploading of videos (which Google did not take down) about the proceedings, Mr Barilaro and his lawyers after the proceedings had been commenced. Justice Rares viewed this as involving "brazen attempts to bring improper pressure to bear on each of them”. Accordingly, it referred both Mr Shanks and Google to the Principal Registrar to consider whether to instigate proceedings for "what appear to be serious contempts of court."