A two-part analysis of the recent decision of Barilaro v
Google LLC  FCA 650
Earlier this month, Justice Rares of the Federal Court
of Australia delivered judgment in Barilaro v Google LLC  FCA 650
(Barilaro) in which:
- Google was ordered to pay Mr Barilaro $715,000;
- Each of Google and Jordan Shanks-Markovina (aka
‘friendlyjordies’) was referred to the Principal Registrar
to consider whether to institute proceedings against them for what,
it was said, appeared to be serious contempts of
This is a two-part publication:
- Part 1 – below – is an overview of the
circumstances leading up to the judgment, including what went wrong
for Google as it progressively abandoned all of its defences until
it was on the receiving end of one of the most scathing defamation
judgments in recent times.
- Part 2 – here – explores some of the interesting and
topical questions raised by the proceedings, at a time when
Australian defamation law reform is ongoing, including as to
corporate social responsibility, the extent to which online
platforms like Google should be liable for defamatory publications
uploaded by third parties, and the limits which should be imposed
on our freedom to express opinions about those in public
In Australian Consolidated Press Ltd v Uren  HCA
37, Windeyer J said that “a man who chooses to enter the
arena of politics must expect to suffer hard words at
John Barilaro was the Deputy Premier of New South Wales and the
leader of the State Parliamentary National Party from 15 November
2016 until, on 5 October 2021, he resigned as Deputy Premier and
announced his intention to retire from politics.
For over a year preceding his resignation, Mr Barilaro had
suffered much more than ‘hard words’.
He had been the victim of a terrible onslaught of abuse – both
online and in person – as a result of a series of videos about him
which had been uploaded to YouTube by Mr Shanks.
Mr Shanks, and the videos
Mr Shanks is a political commentator, comedian and YouTuber.
From mid-2020, he started to target Mr Barilaro in a series of
It is important to understand from the outset that the videos
were not ‘merely’ defamatory – Justice Rares characterised
them throughout his judgment as “relentless, racist,
vilificatory“, “deeply offensive.and
unacceptable“, “patently racist“,
The videos provoked thousands of abusive, denigratory online
statements about Mr Barilaro – some sent to him privately; others
posted publicly. Some of the third party responses to the videos
are revolting, such as a Facebook message referring to Mr
Barilaro’s young daughter, which Justice Rares described as
How Facebook, with all its sophisticated algorithms
to assist its revenue generation, can allow such material to be
posted on its platform, is a question that deserves to be examined
by the Parliament.
After Google, which operates the YouTube platform, refused to
remove the videos, Mr Barilaro commenced defamation proceedings
against Mr Shanks and Google.
He sued on two of the videos – ‘bruz‘ and
He alleged they conveyed defamatory imputations, including that
he had acted corruptly, was a conman, and had committed
Mr Shanks’ Defence
In August 2021, Justice Rares found that Mr Shanks could not
plead justification under s.25 of the Defamation Act 2005
(NSW) (the Act) to one of the imputations (that Mr
Barilaro had committed perjury) or honest opinion under s.31 of the
Act, because this would involve impeaching or questioning
proceedings in Parliament (in contravention of Art 9 of the
Bill of Rights 1688 (Eng), as applied in New South Wales
by force of s.7 of the Imperial Acts Application Act 1969
Google filed a Defence – in which it:
- Denied that the videos conveyed any of the imputations;
- Pleaded that the videos were published on an occasion of
qualified privilege – pursuant to: first, the
common law; secondly, the implied freedom referred
to in Lange v Australian Broadcasting Corporation(1997)
189 CLR 520 (Lange); or
thirdly, s.30 of the Act;
- Pleaded a reliance upon the new defence of public interest
under s.29A of the Act (part of the 2021 amendments to the
defamation legislation); and
- Pleaded that one of the videos – bruz – was a
statement by Mr Shanks of his honest opinion based on proper
material under s.31(3) of the Act.
Settlement between Mr Barilaro and Mr Shanks
In October 2021, Mr Barilaro settled with Mr Shanks – the
settlement required him to remove the defamatory parts of the two
videos sued upon, make an apology (which was read in open court in
November 2021), and pay Mr Barilaro $100,000 in costs.
Abandonment of Google’s defences
Prior to and during the hearing, Google started to progressively
abandon its defences.
First, on 14 March 2022 – exactly one week prior to the
commencement of the hearing – Google abandoned its defences of
qualified privilege and honest opinion.
It was found that these defences had been hopeless, could never
have succeeded, and should not have been pleaded.
The pleading of common law qualified privilege was
“unjustifiable“. That was because there could
not have been the requisite reciprocity of duty and interest
between Google, as publisher of the videos on YouTube, and the mass
audience to whom the videos were indiscriminately published.
Nor could there have been a defence of qualified privilege under
the implied freedom or under s.30, each of which require the
publisher to show that its conduct was reasonable. Google’s
conduct was “unreasonable“.
That left only the defence ‘of public interest’ under
s.29A (even though this only applies to publications after 1 July
2021 and the two videos sued upon were first uploaded in September
and October 2020). On the first day of the hearing (21 March 2022),
Mr Barilaro’s Senior Counsel repeated a submission which had
been put in an argument back in August 2021 – that Mr Barilaro was
not making any claim for publication after 1 July 2021 and that
therefore s.29A did not apply. The penny dropped. Later that day,
Google agreed ‘not to press’ the defence under s.29A. Even
if s.29A could have applied, the defence was
“hopeless” – including because Google could not
have shown that it reasonably believed that the publication of the
videos was in the public interest.
Also on the first day of the hearing, Google abandoned its
denials that the videos conveyed the imputations. These denials had
been made notwithstanding that: a) Mr Shanks had himself admitted
they were conveyed by his videos; and b) the very words of at least
some of the imputations were in the videos themselves (i.e. they
were conveyed explicitly). Justice Rares found that
Google’s denials had been “obviously
hopeless“, “unjustifiable” and
“untenable“. Each of the imputations was
“as plain as day“.
The pleading was found to have been an abuse of the Court’s
process, and reflects poorly on Google.
Google’s conduct has the potential to reinforce the
layman’s suspicion that litigation is ‘a game’, the
rules of which can be bent or broken by corporate defendants with
Google never had a viable defence. But rather than removing the
videos, it “dragged the litigation out by pleading
defences that had no prospect of succeeding, causing Mr Barilaro
added distress, damage to his reputation, and delay to his
Award of damages
By the second day of the hearing, therefore, all that remained
was an assessment of damages.
The award of damages – $715,000 – was high, but perhaps not
The Court found that the imputations were serious, and that the
publications not only were widespread but had resulted in Mr
Barilaro being driven prematurely from public office (though no
doubt some will re-evaluate this finding in light of the recent
reporting about Mr Barilaro’s appointment to a US trade
The judgment sum had “to reflect the very substantial
damage done to his feelings, his reputation, the need to nail the
lie and to vindicate him to the public“.
In addition, Google was found to have aggravated the harm
suffered by Mr Barilaro by:
- Its failure to remove the videos;
- Its conduct of the proceedings – including, as above, pleading
defences which were hopeless;
- Its failure to apologise; and
- Its cross-examination of Mr Barilaro.
Click here to read part two, which explores some of
the interesting and topical questions raised by the
1 Barilaro v Shanks-Markovina (No 2)
 FCA 950.