Google loses defamation case in Australia, for failing to take action against defamatory Youtube channel videos.

[Dirtyshado]

Summary

 

Australia is one of the few Western nations that holds social media/online platforms as having the same legal responsibilities as publishers (when hosting content or comment sections).

 

Google (Alphabet/Youtube) has lost a defamation case in Australia and ordered to pay $715,000 Australian dollars (515k USD) for failing to take action against two defamatory Youtube videos (and their comments section) that they hosted that were part of the channels hate campaign against a politician. 

 

The Youtuber (Shanks) suggested the politician (Barilaro) was corrupt but did not provide proof of the allegations, citing it was a cover-up conspiracy, and without evidence filled his videos with harassment and insulting commentary about the politician, his Italian heritage and using racist criminal stereotypes. The politician claimed to be a victimn of a directed hate campaign, sued the Youtuber, and asked Google for the videos to be removed as per a policy breach because they were "relentless, racist, vilification, abusive and defamatory", Google denied his request citing the Youtuber had a right to their opinion and was protected speech to criticise a public politician.

 

The politician first sued the Youtuber and settled his defamation court last year against the Youtuber, for $100k Australian dollars, and a court order for the videos to be edited to remove elements that were unfounded or hateful.

 

The politician then sued Google (as a publisher), claiming they failed to take action against the video that was cited by the Federal Judge as "nothing less than hate speech". Google lost.

 

Quotes

Quote

The judgment showed Google had denied the videos carried defamatory imputations, and said the YouTuber had the right to an honestly held opinion and should be protected by the right to criticise a politician.

 

(Judge Rares said) Google breached its own policies aimed at protecting public figures from being unfairly targeted, and “drove Mr Barilaro prematurely from his chosen service in public life and traumatised him significantly.”

 

Quote

The ruling revives the question of how much culpability technology firms have for defamation conveyed by users on their websites in Australia, one of few Western nations where online platforms have the same legal responsibility as publishers.

 

My thoughts

Its a politician I hate, a youtuber I hate, and it was a whole drama most Australian's hated hearing about.

The fact Google has been held to the level of "publisher" in Australia for Youtube videos they had no responsibility in creating, but failed to take action against as hosts, has serious knock on effects at least in this region about what Youtube (and other social media sites) have to do to moderate content.  

 

Sources

Reuters: https://www.reuters.com/article/australia-court-alphabet-idTRNIKBN2NN00X

[ConfiXs]

this puts my opinion in an awkward position, cause I cant decide who I hate more, politicians or big business, but imo everyone should have the right to free speech, but that does not mean they have the right to no consequences, at the same time holding google accountable is like holding gun manufacturers accountable every time someone gets shot or sues a car company when someone gets killed speeding, its stupid and makes 0 sense.

[williamcll]

32 minutes ago, ConfiXs said:

this puts my opinion in an awkward position, cause I cant decide who I hate more, politicians or big business, but imo everyone should have the right to free speech, but that does not mean they have the right to no consequences, at the same time holding google accountable is like holding gun manufacturers accountable every time someone sues a car company when someone gets killed speeding, its stupid and makes 0 sense.

Too bad the threat of consequences is now being used against free speech.

[Arika]

There is a fine line between what would be supported under free speech (the concept, not the american 1st amendment) and actual defamation.

[Sauron]

Am I wrong in believing that youtube is responsible for removing illegal content from the platform in most countries? Isn't that the reason they err on the side of caution on copyright disputes? In that case if a court deems the content to be defamatory then Google should indeed remove it and this should be perfectly enforceable so I don't see why they should also be held responsible for the crime as though they produced the content themselves.

 

Still, can't really blame the judge if that is indeed the law in Australia... I guess if anything this shows why pushing for similar laws elsewhere is kind of a bad idea.

1 hour ago, Arika S said:

There is a fine line between what would be supported under free speech (the concept, not the american 1st amendment) and actual defamation.

A court found it to be defamation so I'd say at least in theory due diligence has been done here.

[wanderingfool2]

Does anyone have the case number for this?  Overall I am pretty against a company like YouTube getting hit by a defamation lawsuit, but context would be important

 

If lets say it was actually racist or something obviously illegal then I agree that a penalty should be applied.

 

With that said though, if it's just a defamation and there are stated "facts" or claims then I do believe places like YouTube should not be held liable.  The main reason is, even if this was a defamatory video it's going to create a ripple effect on the platform.  Specifically if someone now claims something is defamatory they will pretty much be forced to automatically remove it (because realistically they can't watch the entire video and make the judgement call because if they are wrong they are liable).  It's similar to how content-ID gets abused, but the only reason why it's like that was because of costly lawsuits pretty much requiring them to allow anyone access to content-ID.

 

So in effect you could now have an effective way of censorship, simply by lodging complaints that things are defamatory (even if it's grounded in truth).  Overall, I think it should be the poster who is responsible and it should go to court and the court should decide on whether it was defamatory or not.  If it is clear cut then the court could easily issue a ruling that they suspect the case will likely succeed.

[Supreme Calamitas]

2 hours ago, Dirtyshado said:

515k USD

oh no! 500k! what is google gonna do?!

 

Penalize them percentages of their entire company, dumbasses.

[wanderingfool2]

20 minutes ago, Marko1600 said:

oh no! 500k! what is google gonna do?!

 

Penalize them percentages of their entire company, dumbasses.

Except that it now opens the flood gates for defamation lawsuits.  Lets say there are 1000 defamations in a youtube videos a year.  If all match the 500k settlement, that could be 0.5 billion a year.  That starts to make up a healthy percentage of their entire profits per year.  Also litigation is expensive, it's now going to be possible for others to repeat now that they have lost.

 

A 500k penalty overall is quite large when you consider the ramifications that this could mean in terms of how YouTube and other platforms treat user posts.

[AnonymousGuy]

Doesn't seem reasonable to expect a host like Google to be a judge of what is defamatory or not.   All this is going to do is end with anyone having anything flagged as defamatory and then google auto-deleting it because they don't want legal consequence.

[Roswell]

There aren't enough people on this earth to watch and vet every video uploaded to YouTube, let alone all of the other platforms.

 

What a stupid law. This is what happens when old people who don't understand technology have sweeping power over technology.

[Ydfhlx]

7 hours ago, ConfiXs said:

imo everyone should have the right to free speech, but that does not mean they have the right to no consequences

Yes it does... If there are consequences you're not free to do it. That's literally the definition.

 

And now in Australia you can't accuse a politician unless you have concrete proof. "Free speech" indeed. I kinda feel like they're going the Chinese route step by step.

 

Regarding the case against Google, then I think it is well possible for them to remove all videos that may be illegal in Australia. Again, China managed to censor the Internet pretty much, so the technology certainly is there. It doesn't however seem like then want to help Australia in this regard. Perhaps they have significant revenue to be lost if they comply willingly.

[ConfiXs]

5 minutes ago, Ydfhlx said:

Yes it does... If there are consequences you're not free to do it. That's literally the definition.

 

And now in Australia you can't accuse a politician unless you have concrete proof. "Free speech" indeed. I kinda feel like they're going the Chinese route step by step.

 

Regarding the case against Google, then I think it is well possible for them to remove all videos that may be illegal in Australia. Again, China managed to censor the Internet pretty much, so the technology certainly is there. It doesn't however seem like then want to help Australia in this regard. Perhaps they have significant revenue to be lost if they comply willingly.

when i say not free from consequences i mean if you say the moon is purple or spread hate speech and someone calls you an idiot or (in the second case) retaliate, thats what i mean by not free from consequence

[ConfiXs]

Just now, ConfiXs said:

when i say not free from consequences i mean if you say the moon is purple or spread hate speech and someone calls you an idiot or (in the second case) retaliate, thats what i mean by not free from consequence

in regards to politicians trying to censor, they can censor my nuts

[Supreme Calamitas]

6 hours ago, wanderingfool2 said:

Except that it now opens the flood gates for defamation lawsuits.  Lets say there are 1000 defamations in a youtube videos a year.  If all match the 500k settlement, that could be 0.5 billion a year.  That starts to make up a healthy percentage of their entire profits per year.  Also litigation is expensive, it's now going to be possible for others to repeat now that they have lost.

 

A 500k penalty overall is quite large when you consider the ramifications that this could mean in terms of how YouTube and other platforms treat user posts.

Companies as big as Google will become a huge problem in the future, they will be as problematic as climate change is right now. Once the visionaries who started these companies are long dead, sh*t will go down.

 

Making money for Google is effortless, like peddaling a bicycle down hill. 

 

I'm not saying that we should just fine them necessarily, they should be democratized. As of right now they're all authoritarian. We can't have people like Jeff bezos deciding what you buy online or people like mark Zuckerberg decide how you connect online.

 

Hold them to high standards. Running a company isn't easy, but that's what they signed up for

 

[CarlBar]

9 hours ago, wanderingfool2 said:

Does anyone have the case number for this?  Overall I am pretty against a company like YouTube getting hit by a defamation lawsuit, but context would be important

 

If lets say it was actually racist or something obviously illegal then I agree that a penalty should be applied.

 

With that said though, if it's just a defamation and there are stated "facts" or claims then I do believe places like YouTube should not be held liable.  The main reason is, even if this was a defamatory video it's going to create a ripple effect on the platform.  Specifically if someone now claims something is defamatory they will pretty much be forced to automatically remove it (because realistically they can't watch the entire video and make the judgement call because if they are wrong they are liable).  It's similar to how content-ID gets abused, but the only reason why it's like that was because of costly lawsuits pretty much requiring them to allow anyone access to content-ID.

 

So in effect you could now have an effective way of censorship, simply by lodging complaints that things are defamatory (even if it's grounded in truth).  Overall, I think it should be the poster who is responsible and it should go to court and the court should decide on whether it was defamatory or not.  If it is clear cut then the court could easily issue a ruling that they suspect the case will likely succeed.

 

+1 on the context is important part. There's a huge range of possibble ways it could have happened and how it happened is key to the question of how fair this judgement is. Details are important. That said i absolutely recognise the potentiol issues with this./ I've allways said it should be upto government agencies to handle this kind of thing, not google. Just as is the case with traditional TV and Radio

[leadeater]

3 hours ago, CarlBar said:

+1 on the context is important part. There's a huge range of possibble ways it could have happened and how it happened is key to the question of how fair this judgement is. Details are important. That said i absolutely recognise the potentiol issues with this./ I've allways said it should be upto government agencies to handle this kind of thing, not google. Just as is the case with traditional TV and Radio

Do consider that since this went to court, twice now, Google was most certainly contacted and asked to remove the content and did not. So the bare minimum context is Google refused to action or did not even acklowdge a request to remove content that could reasonably considered defamatory and didn't. When it comes to Copyright they remove shit even when it's not "reasonably considered".

 

No matter what, it falls on Google to actually remove it. Doesn't matter if it's a personal legal request or whatever police from whatever country, Google still actually has to do it and they have a long, long, long history of doing nothing. Google only cares about legal liability hence why there is a system at all for Copyright, because they have been reemed for it in the past and have been forced to care.

 

Note as a publisher you are responsible for removing defamatory content, news papers and TV news do this all the time (by way of public retraction and removing/edit digital articles). Not doing so does actually make you liable, at least in most countries laws anyway. "I'm not the author" isn't actually a defense after proper notification has been given.

[Spotty]

14 hours ago, wanderingfool2 said:

Does anyone have the case number for this? 

Barilaro V Google: [2022] FCA 650

Barilaro V Shanks: [2021] FCA 789, [2021] FCA 950  (The defamation cases against the youtuber which preceded this action against Google)

 

The court document is hundreds of pages long and goes through a lot of detail, mostly detailing the defamatory remarks and the harassment Barilaro received (which is honestly just a big drama sandwich that you probably don't want to take a bite out of).
What's probably most interesting to people with regards to the whole "Publisher" debate is the "Google as a Publisher" section (section 112) where it outlines that the videos were in violation of Youtube's own community policies and how Youtube failed to remove them after several complaints were lodged, including with the head of Youtube Australia.

Google's defence for not removing the videos, which they later dropped as their defence, was that Youtube claimed the videos "served a public interest" despite being against their own policies [and the court (later?) finding them defamatory in Barilaro V Shanks cases].

 

Quote

CONCLUSION

402 Google made a considered decision to keep the bruz and Secret Dictatorship videos available on YouTube from 22 December 2020, knowing of their content and Mr Barilaro’s complaints. Google had no defence to Mr Barilaro’s claim that each of the matters complained of conveyed the defamatory, very serious and false imputations on which he relied. 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 vindication. Google encouraged and facilitated Mr Shanks in his vitriolic, obsessional, hate filled cyberbullying and harassment of Mr Barilaro both before and after Mr Shanks settled the defamation claims against him: Voller 392 ALR at 548 [32], 563–564 [104]–[105]; Rush 380 ALR at 517–519 [431]–[434]. It did so with a view to its commercial profit.

403 Google sought to put itself forward to the public as having policies governing the use of YouTube that it would use to protect individuals, including public figures such as senior politicians, from being subjected to racist attacks, harassment, hate speech and cyber bullying. However, despite multiple breaches of those policies that were evident in each of the matters complained of and the other videos in Mr Shanks’ campaign described above, Google chose to continue publishing that material. It published the bruz and Secret Dictatorship videos without any belief in their truth or attempt to ascertain if there were any basis for them, knowing of their wide dissemination on YouTube and their connection to Mr Shanks’ obviously obsessional campaign.
 

404 Google’s publication of the matters complained of drove Mr Barilaro prematurely from his chosen service in public life and traumatised him significantly. Google cannot escape its liability for the substantial damage that Mr Shanks’ campaign caused: Webb 41 CLR at 364–365. He needed YouTube to disseminate his poison. Google was willing to join Mr Shanks in doing so to earn revenue as part of its business model. It did so without regard to acting as a responsible or reasonable publisher, which actually intended its policies to be applied to Mr Shanks’ campaign, would have acted.
 

405 Having regard to all of the evidence, the gravity of the imputations, the harm to Mr Barilaro’s feelings and reputation, Google’s significant aggravation of the damage and the need to vindicate Mr Barilaro’s reputation, I consider that he is entitled to judgment in the sum of $675,000. He is also entitled to prejudgment interest from 22 December 2020 of $40,000.
 

406 Having regard to my findings on aggravated damages, my preliminary view is that Mr Barilaro may wish to seek a special order for costs. I will make orders that allow the parties to address on costs.
 

407 I propose to refer the conduct of Mr Shanks and Google to the Principal Registrar of the Court to consider whether to institute proceedings against each for what appear to be serious contempts of court by bringing improper pressure on Mr Barilaro and his lawyers not to pursue this proceeding.

 

TLDR; The court concluded that Google/Youtube knew the videos were defamatory and against their own policies regarding hate speech and harassment but decided not to remove them to protect their own commercial interests.

Edited June 7, 2022 by Spotty

[Kisai]

16 hours ago, ConfiXs said:

this puts my opinion in an awkward position, cause I cant decide who I hate more, politicians or big business, but imo everyone should have the right to free speech, but that does not mean they have the right to no consequences, at the same time holding google accountable is like holding gun manufacturers accountable every time someone gets shot or sues a car company when someone gets killed speeding, its stupid and makes 0 sense.

 

Well, a reasonable world would realize that free speech is not unlimited, anytime, anywhere & everywhere. Free speech first and foremost is about the state not being permitted to censor you for arbitrary reasons, because the state (see various company TOS's vague-censoring) will just make an excuse to harass and intimidate you. Now if this was equally applied to all public and private companies, employees would have the right to discuss their salaries, unionize and injustices would be brought to light without needing whistleblower laws. But no, generally your free speech ends as soon as you enter a building or visit a website not operated by the government.

 

However, especially in the last 25 years, the internet has made free speech a "free speech for some, until you have none" as the platforms get told to censor things because they're brand-unsafe (at the demands of advertisers like Coke and Pepsi, or Payment processors like VISA.) You have to realize that politicians in the United States have been slandering each other for decades before the internet, and it's just been standard operating procedure to take everything innocuous said or done and make it seem malicious. Because there is no requirement to be truthful if you're "entertainment", you have a lot of people making "content" that people can't tell when something is slander or something is satire. This is literately where the "I may not like what you say, but I'll defend your right to say it" kind of saying comes from. Some satire is very mean spirited, that has had consequences from the target demographic.

 

Now with Australia, I get the feeling, that maybe the video itself might be an Australian target and the video itself might from an Australian content creator trying to pass "entertainment" as news but not quite getting the spirit of satire right, or maybe the guy is just a "Grumpy Old Guy(tm)" yelling at the cloud. 

 

Google itself tends to align itself with generous free-speech from "US Law", and if it applied every countries laws to all videos on the youtube, there would be nothing on the site. Copyright laws alone would destroy Youtube if they had to prove every video uploaded was authorized by the uploader.

 

[Dirtyshado]

3 hours ago, Kisai said:

Google itself tends to align itself with generous free-speech from "US Law", and if it applied every countries laws to all videos on the youtube, there would be nothing on the site. Copyright laws alone would destroy Youtube if they had to prove every video uploaded was authorized by the uploader.

The funny thing to me is Youtube created the anti-defamation policy in the US, to protect US politicians, so they wont write laws to that effect.

So there is irony that the policy they created to stop this exact law, was ignored in the one country that had that law.

[maartendc]

20 hours ago, ConfiXs said:

this puts my opinion in an awkward position, cause I cant decide who I hate more, politicians or big business, but imo everyone should have the right to free speech, but that does not mean they have the right to no consequences, at the same time holding google accountable is like holding gun manufacturers accountable every time someone gets shot or sues a car company when someone gets killed speeding, its stupid and makes 0 sense.

It sounds to me like it is a good thing that Google / Youtube is held accountable for content that is unlawful on their platform. Unlawful could be inciting violence, or death threats, or in this case defamatory content.

 

Up until now the likes of Google are profiting off of ANY type of content, and harmful content is "not their problem" so to speak. They don't want to invest or put money / time / effort into moderation, simple as that.

 

In a sense, it is analogous to a newspaper publishing something defamatory, as this ruling finds. They are spreading the content, and they are making money off of it. The argument that "there is too much content to monitor" or "we cannot be held responsible for what users do with our platform" is very weak. They are profiting off of the sheer volume of content and users as well. So they can use part of the profits to monitor and moderate.

 

This could be partly automated as well. 95% of content does not need to be moderated, because it does not have anything negative in it at all. A video about gardening, an overclocking video, a video with a makeup tutorial, a video of spongebob for the kids. Surely you can make an algorithm that identifies this type of "benign" content. The remaining 5% of content that could be "hateful" "negative" or "controversial" can easily be identified by keywords in the language being used. Then a human moderator needs to review and decide.

 

 

[Dirtyshado]

1 hour ago, maartendc said:

This could be partly automated as well. The remaining 5% of content that could be "hateful" "negative" or "controversial" can easily be identified by keywords in the language being used.

Algorithm, Google doesn't know how to do create algorithms that do text searching, else they would of resolved the comment section bot spam problem, or the offensive account name problem, or the jail bait named account (with the titty thumbnail) which is clearly a scam problem.

[mr moose]

18 hours ago, wanderingfool2 said:

Except that it now opens the flood gates for defamation lawsuits.  Lets say there are 1000 defamations in a youtube videos a year.  If all match the 500k settlement, that could be 0.5 billion a year.  That starts to make up a healthy percentage of their entire profits per year.  Also litigation is expensive, it's now going to be possible for others to repeat now that they have lost.

 

A 500k penalty overall is quite large when you consider the ramifications that this could mean in terms of how YouTube and other platforms treat user posts.

Not really,  defamation cases in Australia have to have evidence of defamation (i.e "X is a murderer" is defamation and requires evidence they murdered someone to not be defamation, while "I believe X is a murderer, his body language doesn't sit right with me" is personal opinion and does not constitute defamation).  You cannot (even in the event you find a lawyer stupid enough to take your case) force an outcome simply by claiming defamation where no defamation has occurred.    In this case the youtuber made absolute claims that constitute defamation and neither he nor the supporting platform making it possible refused to do anything about it.

 

 

 

I think this is an awesome outcome:

1. dickheads on youtube have to learn they can't just lie and con without consequences.

2. YouTube has to learn if they provide the means and refuse to take responsibility they become accessories.

3. This politian took everything through the correct channels rather than simply using their position to set the Anti terrorist police on to them or some similarly undemocratic and unjust abuse of political power.

 

And number 3 is a big one, it's not everyday that a politician (or any rich controlling entity) plays fairly and gives anyone a chance to fix the issue before taking the appropriate court action.  At all times in this whole thing the defendants were afforded proper due process.     They had a chance to avoid court and the ability to defend themselves in court.  There was another youtuber doing exactly the same thing not that long ago but the politician just had the federal police arrest him instead of bothering with court and due process. 

 

 

[mr moose]

1 hour ago, maartendc said:

The argument that "there is too much content to monitor" or "we cannot be held responsible for what users do with our platform" is very weak. They are profiting off of the sheer volume of content and users as well. So they can use part of the profits to monitor and moderate.

 

 

It is the weakest argument ever,  if they can;t control their platform then they should be running it.  Imagine If the police said they were just going to stop arresting people because there was too much crime to control? 

 

Also the gun analogy made earlier does not work, gun makers have zero control over guns after they are sold,  google has complete control over every video on youtube and they make ongoing money from them.   

[maartendc]

5 minutes ago, Dirtyshado said:

Algorithm, Google doesn't know how to do create algorithms that do text searching, else they would of resolved the comment section bot spam problem, or the offensive account name problem, or the jail bait named account (with the titty thumbnail) which is clearly a scam problem.

Google's whole business is based on an algorithms that search text

 

They CAN tackle the bot spam or the offensive  account names, they just don't want to.

 

Hell, I can write you the algorithm right now:

 

> IF "comment body" contains "OMG You WON $1 million!!" ---> Delete comment.

> IF "Video speech" contains <Insert hateful words here> --> Put on list to have checked by human moderator.

[Dirtyshado]

14 minutes ago, mr moose said:

3. This politian took everything through the correct channels rather than simply using their position to set the Anti terrorist police on to them or some similarly undemocratic and unjust abuse of political power.

 

And number 3 is a big one, it's not everyday that a politician (or any rich controlling entity) plays fairly and gives anyone a chance to fix the issue before taking the appropriate court action.  At all times in this whole thing the defendants were afforded proper due process.     They had a chance to avoid court and the ability to defend themselves in court.  There was another youtuber doing exactly the same thing not that long ago but the politician just had the federal police arrest him instead of bothering with court and due process.

  I am not sure if your trying to be funny here, or you don't know.

 

That politician was Barilaro, after he filed his lawsuit against Mr Shanks. The producer started following the politician around and started turning up at all his scheduled events, asking "Why are you suing my boss?". The police chief gave it to the Fixated Persons Unit (which is also part of the counter-terrorist police unit) and they arrested the Youtuber's producer and charged him with stalking.