Barilaro ruling ‘a real turning point’ in social media defamation debate

Social media companies like Google-owned YouTube will be held more accountable for defamatory content published on their platforms after a major court decision on Monday.

That was the key conclusion drawn by media lawyers who analysed the Federal Court’s ruling that Google must pay $715,000 in damages to former NSW deputy premier John Barilaro over a series of defamatory videos posted on YouTube.

YouTuber Friendlyjordies had parodied Mr Barilaro in a series of “racist” and “abusive” videos in 2020 and 2021 in which he also accused the former NSW deputy premier of being corrupt.

The court heard that the YouTuber repeatedly used derogatory and racially charged language that Mr Barilaro said took him back to his time at school where he suffered racist abuse because of his Italian heritage.

Mr Barilaro and Friendlyjordies settled out of court in November, but this new ruling relates to Google, the parent company of YouTube.

On December 22, 2020, Mr Barilaro issued the internet giant with a concerns notice. In it, he argued 10 of Friendlyjordies’ videos were in breach of YouTube’s own anti-hate speech, harassment and cyber-bullying policies and should be taken down.

Google did not take down the videos from YouTube at the time.

“Google here was held liable, because Barilaro notified them about the presence of those YouTube videos,” said David Rolph, a University of Sydney professor specialising in media law.

“And Google looked at the videos and assessed them against their own policies and decided not to take them down.”

YouTube’s moderation systems have been criticised as ineffective in the past, and the specific rules that it enforces frequently change.

Professor Rolph called the concerns notice “a real turning point” in establishing whether Google was liable for the videos.

The ruling follows a landmark case in 2019 where The Age and The Sydney Morning Herald were found to be liable for defamatory comments published in the Facebook comments section of a story about Dylan Voller, the Aboriginal teenager who made headline news after images of him being held in a head restraint at the Don Dale Detention Centre were leaked.

Dr Mark Williams, a Melbourne-based media lawyer with more than three decades of experience, said the ruling was a major blow to the company’s long-standing position that it passively disseminates other people’s information and therefore shouldn’t be liable.

“The judgment sounds tough for Google’s argument but logical in defamation law, despite 20 years of argument by Google that it’s a switching service, not a publisher,” he told The New Daily.

A different culture online

“Defamation law doesn’t really have that much of a sense of humour,” Professor Rolph said.

This means even YouTubers and other political commentators must be careful that their parodies of certain public figures do not damage their reputation.

This case highlights the challenge of applying existing defamation laws in Australia – which are internationally notorious for their severity – to the new world of social media.

“The difficulty I think is that, obviously, a lot of these large media companies like Google, Facebook and Twitter are based outside of Australia, and particularly are much more comfortable with applying a sort of United States approach to freedom of speech under the First Amendment,” Professor Rolph told TND.

“That is atypical. Their very protective approach to free speech under the US Constitution is not really matched anywhere else in the world.”

In some cases, these companies’ policies could favour free speech principles over protecting individuals’ reputations.

As Justice Steven Rares put it in his Monday ruling: “He needed YouTube to disseminate his poison.”

He also concluded that Google “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 vindication”.

Google did not respond to a request for comment.

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