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How YouTube behaves when it goes to court

Defamation lawyer Hannah Marshall, on Barilaro versus Google and what the outcome of the case reveals about one of the most powerful companies in the world.
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Last week, a legal battle involving the Australian YouTube sensation Friendlyjordies and the former deputy premier of NSW John Barilaro came to an end, with a judge finding the YouTube videos from 2020 were ‘replete with racist, hate-filled rants’.

But it wasn’t the comedian Friendlyjordies who was in court this time. It was the owners of YouTube, Google.

So what did we learn about how Google runs YouTube? How does it police speech? And how does that stack up with Google’s public image?

Today, defamation lawyer Hannah Marshall, on Barilaro versus Google and what the outcome of the case reveals about one of the most powerful companies in the world.

 

Guest: Lawyer and contributor to The Saturday Paper, Hannah Marshall.

 
Read Transcript

[Theme Music Starts]

 

RUBY:
From Schwartz Media, I’m Ruby Jones, this is 7am.

 

Last week, a legal battle involving the Australian youtube sensation Friendlyjordies and the former deputy premier of NSW John Barilaro came to an end – with a judge finding the youtube videos from 2020 were ‘replete with racist, hate-filled rants’.

 

But it wasn’t the comedian Friendlyjordies who was in court this time. It was the owners of YouTube, Google…

 

So what did we learn about how Google runs YouTube? How does it police speech? And how does that stack up with Google’s public image?

 

Today, defamation lawyer Hannah Marshall, on Barilaro versus Google - and what the outcome of the case reveals about one of the most powerful companies in the world.

 

It’s Tuesday, June 14.

 

[Theme Music Ends]

 

RUBY:
Hannah I thought a good place to start would be if you could perhaps tell me a bit about your interest in this particular legal case? 

 

HANNAH:
Sure. My interest in the case, I suppose, stems from a few things. The first is that I practise in defamation. I do a lot of pre-publication advice with news publishers, and so any big defamation case interests me. I think the second point, I suppose, is a bigger concern around what's going on with digital platforms and all this power they have and how should we regulate them. And that's a question for defamation law and other laws as well, like competition law. And it's happening at a global level. That utterly fascinates me, trying to figure out where they've infused our lives in all these different ways. You know, what rules should apply to them.

 

RUBY:
Mm that’s really what this case is about at its core isn’t it - it’s about Google, and to what extent it’s accountable for what is on its platforms... That’s what's being tested here. And in this specific case, we’re talking about YouTube - which Google owns, and a series of videos posted by Jordan Shanks, also known as FJ. So can you tell me about him, and the videos in question? 

 

HANNAH:
So Jordan Shanks is a YouTube comedian who's been operating on the platform for quite a number of years now.

 

Archival Tape -- FriendlyJordies:
“Yeah we’re cops but we are also australians and as australians we are very impressed

When someone is able to drink that much as still get behind the wheel”

 

HANNAH:
and he’s really popular. 

 

Archival Tape -- FriendlyJordies:
“Can I have a smoke?”

 

“No”

 

“Yeah Nah I done the wrong thing eye?”

 

HANNAH:
The style of his comedy is a very kind of rapid fire satire 

 

Archival Tape -- FriendlyJordies:
“He is a criminal, but so was Ned Kelly and he’s still a f** champ”

 

HANNAH:
He's widely regarded as being quite left wing, pro labor and very much anti the Liberal Party.

 

Archival Tape -- FriendlyJordies:
“Seriously, the Liberals are good economic managers is a witches curse on this land.”

 

HANNAH:
And in 2020, Shanks released a whole series of videos attacking the former deputy premier of New South Wales, John Barilaro. And there were two videos in particular, which were the subject of the defamation case, but there was a much bigger set of videos that Shanks published about Barilaro, and that kind of continued right throughout the case.So the two in question, the first one was making allegations of corruption and perjury.

 

Archival Tape -- Jordan Shanks:
“Now that we're comfortable. John Barilaro is a man whose expediency seeps right down to his very genetics.”

 

HANNAH:
and Shanks went and made the video in John Barilaro’s Holiday Home, which he puts up on Airbnb.  So Shanks rented it out and went and sat there and kind of made all of these allegations about Barilaro. 

 

Archival Tape -- Jordan Shanks:
“Giovanni’s actions during the black summer bushfires, like all his other actions in life, stupid as f**”

 

HANNAH:
The second video was looking at Barilaro, his interactions with the Narrandera Council and alleging corruption in the form of taking money from the Narrandera Council.Throughout both of these videos and all the other ones, Jordie's style is to really heap it on Barilaro and he's also making a lot of racial slurs. He's likening Barilaro to the Nintendo Super Mario characters, and he's got a really kind of abusive and slightly vulgar tone about it because that's the style of comedy that he's doing. 

 

And so throughout the case, there were these two issues. The first was the defamation, which was what the court was considering, and the second was whether the other aspects of the videos, the more abusive and racially slurring aspects of the videos, violated Google's own content policies. 

 

RUBY:
Right so Shanks makes these videos about John Barilaro back in 2020. John Barilaro says they defame him, and so he launches legal action - against Shanks and also the company that owns YouTube - Google. Is that right? What happens next? 

 

HANNAH:
So Barilaro sued Shanks and Google at the same time, 

 

Archival Tape -- Barilaro:
“I don't know how many of you can endure what I've enjoyed on online. I feel to young men and women, young boys and girls that get bullied on social media, I feel for them..”

 

HANNAH:
Shanks settled. He made a contribution of $100,000 towards Barilaro as costs. He gave an apology, and he agreed to edit the defamatory parts out of the videos, but otherwise he was going to leave them up on Google. Somewhat surprisingly, the case against Google continued. 

 

Archival Tape -- Barilaro:
And that's why that's why I'm calling out Google today.  And I'm calling out Google. They allow this to happen. 

 

RUBY:
And so why do you think that Google didn't want to take the videos down, that it instead was choosing to continue to fight this legal battle? 

 

HANNAH:
It's a really interesting question to ponder. The videos, the content seemed so obviously to violate Google's policies that it made it really hard to see any other explanation than Google just preferring its commercial interest in keeping the videos up over its commitment to its community guidelines and hate speech policies. You know, the videos were very popular, and the longer they stayed up, the more views they got, the more ads Google could sell. 

 

And the judgement itself looked at that and surmised that Google was making a not insubstantial amount of profit by leaving those videos up. 

 

RUBY:
Right ok. So how did Google ultimately defend itself against the defamation action when it came to court? 

 

HANNAH:
Right from the outset, Google argued a really wide set of defences.  

 

And so very soon after they raised these defences. Barilaro, his lawyers wrote and said, These arguments are going to go nowhere. These defenses are hopeless. Are you sure you want to continue down this path? And Google and its lawyers basically said, Yes, we do. And so they pressed on. And then as the proceedings approached the final hearing, one by one, the pace that the wheels started to fall off. And so by the time the trial started, Google had no defences left. And the only question that was left for the court to consider was what amount of damages it should award against Google. 

 

RUBY:
Mhm. Right. Okay. And so what did the court decide? 

 

Archival Tape -- ABC Reporter:
“Former New South Wales deputy premier John Barilaro has been awarded $715,000 after winning a defamation case against Google.” 

 

HANNAH:
So the court awarded two kinds of damage. The first was general damages, And the court said this was a very serious kind of defamation. 

 

Archival Tape -- International news :
“The court has said that Google failed to, in fact, take down the relentless racist and the vilification, abusive and defamatory campaign, adding that it made money by broadcasting two videos that had attacked Barilaro.”

 

HANNAH:
Separately, it considered what's called aggravated damages, and that's a kind of damages that can be awarded where the behaviour of the defendant is deliberate or dishonest or just generally bad in such a way that it increases the harm to the plaintiff. 

And that's really where the case got interesting.

 

You know, it didn't look at new points of law. It didn't take a new perspective on publishing or defences or anything like that. But what it did do was shine a light under the hood of Google and show how on the one side it paints this very shiny, responsible exterior in which it says We have these guidelines and these policies and we will protect our community. 

 

And on the inside, there was this stoic refusal to remove the content, which quite clearly violated its own policies. 

 

RUBY:

We’ll be back after this

 

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RUBY:
Hannah, we’ve been talking about the case that Google just lost. And it seems like what came out through this case is the disparity between how Google presents itself, and how it actually behaves when it comes down to it… Can you tell me more about how that disconnect played out in the specifics of the case? 

 

HANNAH:
So the judge looked at the friendly Jodie's videos, and his view was that they were replete with racist, hate filled rants that were calculated to bully and publicly hound Barilaro. You know, you take that as a start point, and then you look at what Google says about how it will deal with this kind of content. 

 

You know, it says that it'll take down malicious insults and racial slurs, even if they're used in satire or comedy. The judge saw no plausible basis to defend the videos against those policies. The vast divide between what they say and what they did really struck the judge and I think was a big part of the reason for which he he awarded these aggravated damages. 

 

And it wasn't just a one off refusal. Google refused at the very outset to take down the videos. It maintained its refusal. After friendly Jordies had settled. And then in that period between when friendly, Jodi settled and the matter went to a final hearing with Google Friendly, Jodi's uploaded some more videos this time targeting Barilaro’s lawyers..

 

And makes some very bold and unsupported allegations that they were behaving dishonestly or were completely incompetent, things like that. It was a real attack. 

 

And these videos coincided with Google having made a settlement offer, which Barilaro didn't accept. And so the court took a really grim view of that. They said that that particular behaviour of Google refusing to take down those later videos right at the time when it was trying to settle the case, it must have known that this was bringing pressure to Barilaro to settle, and it went even further in respect of that conduct.

 

Not only did that tie into the question of aggravated damages, but it also resulted in both Google and FriendlyJordies being referred off to to be reviewed for whether they've committed a contempt of court by trying to exert that kind of undue pressure on Barilaro to settle. 

 

RUBY:
And so in the wake of this Hannah - should we all be reconsidering how we think of Google? 

 

HANNAH:
You know, Google got up in the US Congress last year and talked about all of the things that it does to battle misinformation.

 

Archival Tape -- Google:
“Staying ahead of new challenges to keep users safe is a top priority, we strive to have transparent policies and enforce them without regard to politics or point of view.”

 

HANNAH:
And to try to convince the world why it is a responsible citizen and ultimately why it doesn't need to be more heavily regulated.

 

Archival Tape -- Google:
“Our ability to provide a range of information and viewpoints while also being able to remove misinformation is possible only because of legal frameworks like section 32…”

 

HANNAH:
Google also lodged right during the middle of when this case was playing out a submission in respect of defamation law reform, which suggested that the liability of an intermediary like Google should only come into play where the plaintiff, the person who's been defamed, can't identify and pursue the actual content creator. The thrust of what they're saying is we're just an innocent bystander. You should really pare back the situations where we can be legally responsible for someone else's defamatory content.

 

But that doesn't sit well at all with how they conducted this case. They knew about the defamation. They didn't take it down. They did everything they could to prolong the proceedings by taking every point of defence. They never believed in the truth of the imputations themselves that went into evidence from Google. 

 

But they took this point and they dragged this case out and they exacerbated the damage to Barilaro by the whole way they conducted it. You know, that just does not sit comfortably alongside the public proclamations of being trustworthy and being deserving of a much lesser liability position. I find that quite concerning. 

 

RUBY:
And I mean, the other kind of question about this case is, do you think that I mean, someone like John Barilaro is obviously not a regular person. He's the former deputy premier of New South Wales. And so he's, I suppose, uniquely able to take defamation action against a company like Google, but it's not something that's really available to regular people, right?

 

HANNAH:
No. And I mean, there's a few things coming out of that. I think it's very much the case that big defamation proceedings are the purview of the wealthy and powerful, like you say. They're expensive and they're technical and they come at high risk. And if you look at the the big cases that we see, they are by and large being brought by powerful people satisfyingly more often lately by politicians, which I have a whole set of other views about. You know, that's a worry in itself. 

 

RUBY:
Ok and so Hannah, stepping back for a second – this case might be about a former NSW politician and an Australian youtube comedian – but what does this case mean in the context of how we’re all trying to grapple with what responsibility big tech platforms have? Their responsibility for content and to their audiences?

 

HANNAH:
Absolutely, I mean stepping back, You know, there is this global push at the moment to figure out how to regulate these platforms.

 

And where there are these cases coming out which show a degree of duplicity between what they say and what they do, and a preference for commercial interests over enforcement of their own policies. You know, that suggests that we can't take them at face value. We can't rely on them to regulate themselves. And that's concerning because that really places the emphasis back on the regulators and figuring out, you know, how the heck do we deal with these with these massive, massive platforms which have so much control over us and so much power and data. 

 

RUBY:
Hannah, thank you so much for your time.

 

HANNAH:
Thank you very much. 

 

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RUBY:
Also in the news today,

 

In the United States, a bipartisan group of Senators announced they had reached a deal on a proposed package of gun-control legislation.

 

The proposal, which is the first substantive federal gun reform in America in almost 30 years, includes expanded background checks for gun purchases for 18 to 21-year-olds as well as funding for state-based reform.

 

And… Gossip columnist for Nine Newpaper’s *The Sydney Morning Herald*, Andrew Hornery has said he made ‘mistakes’ and ‘mishandled’ his reporting on Actor Rebel Wilson’s same-sex relationship.

 

Wilson, who has not previously identified as gay, was sent a deadline for comment on her relationship by Hornery last week, she then announced the relationship herself via instagram before Nine Newspapers could publish their story. 

 

The reporting has received global criticism from celebrities and media analysts for the threat of ‘outting’ Wilson.

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