Original Source: ABC News, Jamie McKinnell
YouTube comedian Jordan Shanks has been dealt a preliminary blow in the case brought against him by NSW Deputy Premier John Barilaro, after a judge rejected two of his proposed defences.
Mr Barilaro launched the case against Mr Shanks, who is better known by his online moniker Friendlyjordies, in the Federal Court in May over two sketch videos published in September and October.
His lawyers allege he was defamed by imputations including that he is “a corrupt conman”, committed perjury nine times and “should be jailed”, “corruptly voted against a royal commission into water theft” and “corruptly gave $3.3 million to a beef company”.
Mr Shanks proposed to argue that the imputation about perjury was substantially true and the comment about being jailed was honest opinion, because they related to comments Mr Barilaro made in a Parliamentary committee in 2018.
But since he could not do this without Parliamentary privilege being waived, he sought to have that part of Mr Barilaro’s case struck out because he could not mount a defence.
Justice Steven Rares on Friday ruled Mr Shanks cannot be allowed to rely on the proposed defences and that his difficulty in pleading a defence flows from “his own decisions as to what he said and how he conveyed those defamatory meanings”.
The judge noted the first video, titled “bruz”, appeared to have been “scripted and produced with considerable technical skills and support”.
“It was not a spontaneous or unprepared publication,” he said.
“In particular, Mr Shanks chose what he said in it and how he said it.
“In the bruz video, Mr Shanks was not responding to an attack made by Mr Barilaro on him under Parliamentary privilege.”
The judge rejected the bid to have Mr Barilaro’s two imputations struck out.
He described Mr Shanks’s defence as being “pleaded defectively”, having accepted some of Mr Barilaro’s arguments and rejected others, however Mr Shanks has been allowed time to reformulate some of his case.
Mr Barilaro’s lawyers wrote to Google last year requesting the video be removed due to its “vile and racist” language.
On Friday, Google revealed in court it was finalising a defence and was considering whether it would rely on qualified privilege and honest opinion.
The tech giant will also join or support Mr Shanks’s application for a jury trial, which is rare in the Federal Court.
Sue Chrystanthou SC, for Mr Barilaro, took a swipe at Google for requesting extra time for its defence.
“They’re a trillion-dollar company, Your Honour,” she said.
“They’re keeping this material online contrary to their policies in relation to racism.
“They’re making a huge amount of money from advertisers, huge advertisers like Coles and Hungry Jacks.”
The second video is alleged to have painted Mr Barilaro as acting corruptly by engaging in blackmail.
Mr Barilaro’s statement of claim says he has been “brought into public disrepute, odium, ridicule and contempt”.
At the time the case was launched, the two clips had collectively amassed close to 1 million views.
The law firm representing Mr Shanks, Xenophon Davis, has said $1 million has been crowdfunded for his legal defence.
Mr Shanks, who had nearly 490,000 subscribers on his YouTube channel when the case was launched, has previously said it could carry “terrible implications for free speech in this country”.