As a result of posting on what at the time she thought was a legitimate complaint website, with other members of a support group for people at a vulnerable stage in their lives, Janice Duffy, Ph.D. became the victim of online attacks and defamation that destroyed her reputation and career. After numerous attempts over a two-year period to have the damaging and false information about her removed from the site and from Google’s search index were unsuccessful, Janice decided to fight back and took the controversial step of suing Google Inc. and Google Australia in February 2011. Her case is still ongoing.
Initially a reluctant anti-cyberbullying advocate, Janice now publicly speaks out about the harm and long-term repercussions that online reputational smears can have on individuals’ lives.
Janice earned her Ph.D. in the Department of Politics and The National Centre for Education and Training on Addiction at Flinders University and her Bachelor of Arts (Honours) with a double major in Politics and Sociology from Flinders University, Australia. A prolific writer and speaker, she is the author of several published conference papers, refereed/peer-reviewed publications, technical reports and monographs, research reports, chapters in edited books, evaluation reports and conference presentations, with an emphasis on public health and addiction.
CiviliNation: You have been on the receiving end of severe reputational smears and defamatory attacks, including accusations of stalking, blackmail, computer hacking and fraud. Please share your story with us.
Janice Duffy: I really appreciate the chance to share my experience with CiviliNation, but I admit there was a time when I did not want to speak about it. I actually feared my case becoming public and only started talking about it when it became clear I couldn’t evade the media any longer. I suppose it’s to be expected that one cannot quietly sue a company such as Google and go unnoticed. My attorney filed proceedings in February 2011 and I refused to comment publicly until November of last year. When I became aware that the media had obtained the court’s permission to access the case files, and the defamation against me was still highly visible on Google, I decided to start a blog in order to share my story. I have subsequently provided comments to the media in Australia, but I contacted CiviliNation because doing so is a chance to possibly provide benefit to others on a broader and international scale. Hopefully I will be able to share news of a successful outcome to my case some time in the future.
As is typical in many other situations, I was cyberbullied by a person or persons unknown to me. I was part of an online support group that posted about scam artists taking advantage of vulnerable people on what we thought was a legitimate website, Ripoff Report. Because I wasn’t aware of the actual nature of how Ripoff Report does business, I registered on the website using my real name and identifying information. I registered using my real identity because I believe it is cowardly to publish material that is critical about a person or a business on an anonymous basis. However, unbeknownst to me at the time, the website passes on the identities of people who write complaints directly to the businesses and/or individuals that they have made complaints about. Ripoff Report’s owner admitted this in a disposition in the U.S. case The Matter of Federated Financial Services, Inc. vs. Xcentric ventures, LLC, Ed Magedson, et al Case No. CACE0401772 (21) Broward County 17th Judicial District of Florida, and the Honorable Charles R Norgle, the judge in a later case George S. May International Company, Plaintiff, v. Xcentric Ventures, LLC,Ripoffreport.Com, Badbusinessbureau.Com, Ed Magedson, Various Abc Companies, Jane and John Does, Defendants. No. 04 C 6018. United States District Court, N.D. Illinois, Eastern Division, 2004, accepted evidence in discovery that the site tried to sell off lists of consumers to class action attorneys for $800,000 USD.
As a result of Ripoff Report’s common practice of passing along the identity of people who make reports on its website, many people like me are cyberbullied as a “revenge attack” for posting business reviews. My unlisted mobile number was published on Ripoff Report, and I know the only way my attacker(s) could have obtained it was from my login details to the website, which the site shared. Ripoff Report also published a post that urged readers to harass me, which lead to me receiving threatening phone calls. It has been a nightmare and, more than four years after the material was first published on the site, it is still ongoing.
Not surprisingly, Ripoff Report doesn’t remove material even when it can be proven false or defamatory, nor even when, as in my case, a user is cyberbullied as a result of submitting a complaint. There is a recent Florida case in which the judge wrote:
“The business practices of Xcentric, as presented by the evidence before this Court, are appalling. Xcentric appears to pride itself on having created a forum for defamation. No checks are in place to ensure that only reliable information is publicized. Xcentric retains no general counsel to determine whether its users are availing themselves of its services for the purpose of tortious or illegal conduct. Even when, as here, a user regrets what she has posted and takes every effort to retract it, Xcentric refuses to allow it. Moreover, Xcentric insists in its brief that its policy is never to remove a post. It will not entertain any scenario in which, despite the clear damage that a defamatory or illegal post would continue to cause so long as it remains on the website, Xcentric would remove an offending post.”
There is a financial reason why the site operates this way – it can earn substantial revenue from businesses that pay to “rehabilitate” their reputation instead of simply removing this false or harmful material. Ripoff Report charges an upfront fee of between $7,500 and $20,500 plus a monthly subscription for their “Corporate Advocacy Service” (see Asia Economic Institute et al v. Xcentric Ventures LLC et al).
Websites such as Ripoff Report have a high page rank on Google and use this prominence to generate further revenue for the “rehabilitation” of reputations. I’ve summarised the business practices of Ripoff Report on my blog. Unfortunately, according to a blog post by Google’s SEO expert Matt Cutts, Google takes the position that “pretty much the only removals (at least in the U.S., which is what I know about) that we do for legal reasons are if a court orders us.”
Although the allegations published about me are of a serious nature, they are not uncommon on the website. Ripoff Report also publishes offensive and/or defamatory material about individuals and business owners, including extremely sick racial slurs as well as accusations against people of paedophilia and murder.
The very public nature of cyberbullying increases the personal and professional devastation because it is on view to the world. Although research on the psychological impact of cyberbullying is still in its infancy, studies have identified high rates of post traumatic stress disorder, suicide ideation and clinical depression among victims. This is compounded by the powerlessness felt by victims when attempts to get the material removed are repeatedly ignored or refused. The distress experienced by victims is evident in the comments on the Remove Rip Off Report From Google” petition.
CiviliNation: What effect have these attacks had on you professionally?
Janice Duffy: The effect on my life has been profound, and at this point I feel that my career has been destroyed. After my former employer found the defamatory material about me online, I tried to keep my job – I loved working in the field of health research and was good at it – but because both Ripoff Report and Google refused to remove the material, my work environment became so uncomfortable and pressure-filled that I felt I had no choice but to leave my position before I was let go. I resigned with a confidentiality agreement in place that prevents me from going into more details about what happened at my previous employer, but I have no doubt that the outcome of me leaving would have been different if not for the publication of the defamatory material.
I have now been unemployed for 21 months and there is no point in applying for a job while the material remains online. I am facing a long legal battle and I will have to evaluate the damage on my career when I am vindicated. I fear that the damage is irreparable. Now I spend the majority of my time doing research and gathering evidence for my legal case. While I feel that I am lucky that I live in Australia where the law offers a stronger remedy for defamation (as opposed to the U.S. in which both websites and search engines are protected by Section 230 of the Communications Decency Act), it is frustrating because, but for having to fight to clear my name, I could be spending valuable time conducting much-needed health research.
It is difficult to understand why defamatory or offensive content on a website or search engine isn’t removed by the site owners. The effort required to remove it is negligible and it takes only a few keystrokes. Neither Ripoff Report nor Google remove material, but instead hide behind the U.S. Constitution’s First Amendment and cite “freedom of expression” as a rationale for refusing removal requests. Yet the use of this doctrine to justify the non-removal of defamatory and/or damaging material is an aberration because, in its original form, “freedom of expression” was never intended to infringe on other fundamental rights. Interestingly, both Ripoff Report and Google claim they are not publishers of material in the legal sense yet also claim that the material they publish is protected by freedom of speech.
CiviliNation: What effect have these attacks had on you personally?
Janice Duffy: One effect of cyberbullying is that victims become reclusive because the material is on view to the whole world. My name appears at the top of a Google search couched in terms such as “ripoff,” “fraud,” “scams,” “she hacked my computer,” and “she stalked me on the computer”, among others. As a result, I am wary when I meet new people, wondering if they have read these lies made about me. I was a person who in the past has always enjoyed socialising, but now spend much time alone, afraid of what others might think.
When you are the victim of cyberbullying, your are harmed in several ways. One is being the target of actual attacks, which can blindside you. The other is having to endure the hit to your self-confidence and sense of safety, both which can take a long time to rebuild.
CiviliNation: You finally decided to take legal action to help clear your name.
Janice Duffy: For almost two years, I pleaded with and notified both Ripoff Report and Google to remove the defamatory material. Both Ripoff Report and their lawyers ignored my pleas to remove the material, and Google took no action either. Interestingly, Google removed some of the damaging material from their Australian domain AFTER I filed proceedings, but a link to most of it was re-indexed on Google after I complained publicly that Google removed my blog from the search results for my name.
For me, filing a lawsuit was absolutely a last alternative. I took legal action because I just wanted to be able to work, and the defamatory information online was an impediment to finding employment in my field.
I have been criticised for only suing Google rather than Ripoff Report and other search engines as well, but the aim was always to get the defamation removed from view and more than 95% of Australian searches use Google. The other search engines have been more willing to respond to take-down notifications; Bing and Yahoo have removed the defamatory material from their Australian domains and my lawyer and I have notified them to remove it from all domains accessible in Australia.
Honestly, at the time I did not think the case would go to a trial because Google Australia resolved a similar case in 2008 in which the company removed the defamatory material after the first directions hearing and the matter was resolved. However, it appears that the plaintiffs in that particular case were the owners of a lucrative Australian business and therefore had the financial resources to go to a trial. I doubt that Google believes that an ordinary person would have the financial resources to continue litigation and perhaps in my case their legal approach is to try to make my case financially insurmountable in the early stages. Nevertheless for two reasons I was lucky, at least from a legal perspective. Firstly, according to Australian defamation laws, any person or organisation can be found liable if they contribute to the communication of defamation. Secondly, I hired experienced lawyers who are willing to go the distance with me. Even so is it a long process and my dwindling resources are up against those of a multi-billion dollar company.
CiviliNation: Do you believe that employers have any responsibility in checking the accuracy of negative information found online before using this information in making employment hiring decisions?
Janice Duffy: I absolutely believe that employers should check the accuracy of negative information, but I believe that even then it would still detrimentally affect a person’s chances of obtaining a job. Unfortunately negative material can have a subliminal effect on employers’ perceptions, and this is more pronounced in a tight labour market.
Employers see the high page rank of websites on search engines and automatically think the material must therefore be true. It took me many months of research to figure out the way in which both Google and Ripoff Report interact – it is all about the advertising revenue – but an employer is unlikely to have the time or motivation to investigate the truth or falsity of allegations made on websites and find it easier to just employ someone else.
On a positive note, I think people in general have become savvier about monitoring their online reputation in recent years. The Australian government runs an advertisement designed to alert younger people to the potential impact of putting material on Facebook, and a whole industry, namely search engine optimisation, has developed to assist businesses with their web presence. Nonetheless, once the material is on Google it is almost impossible to get it removed and I doubt that employers are aware of this. It is easier for them to assume it is correct or incorrectly believe the potential employee does not care because they have not succeeded in getting it removed.
CiviliNation: Do you believe that search engines, social networking and other websites have any responsibilities to help stem online attacks?
Janice Duffy: In a general sense I believe that these websites cannot monitor everything that is posted, but most of the damage could be mitigated if they removed offensive material upon notification. This would certainly stem the continuation of online attacks. Search engines and social networking sites use the excuse that it is too expensive to remove material on demand and/or that they should not be required to arbitrate about the truth or false nature of material.
But both Facebook and Google enjoy a very high profit margin and these profits are derived from advertising. Therefore, in many cases they are earning money from web pages that contain the damaging material. Ripoff Report and Google both share the advertising revenue derived from putting ads on the website, including the pages that defame me. The ability to make a decision about whether material is likely to cause harm is not rocket science and as I noted above, it only takes a few keystrokes to remove it.
Maybe these companies should use their vast financial resources to fund staff positions to act on removal requests.
CiviliNation: What is your response to people who claim that online reputational attacks against adults are rare and not something that most people need to worry about?
Janice Duffy: I think that proportionate to total Internet usage online reputational attacks are rare, but it is certainly something people need to worry about. From a personal perspective, if it happens to them their lives will be destroyed. There is often no warning that this can happen, and not all victims of cyberbullying know the perpetrators, making defending one’s self even harder. In my case I simply submitted a consumer report on a website I thought was legitimate and several years later I am still fighting to clear my name.
CiviliNation: Why do you think there is a frequent lack of understanding by law enforcement and the legal system about the depth and breadth of the problem of online attacks and cyberbullying against adults?
Janice Duffy: I think the lack of understanding is due to a number of issues. Technology has grown at such a fast rate and cyberbullying is a fairly new phenomenon. It is hard to understand the impact of actions that are enacted from a distance. It is difficult for many to believe that actions that do not entail physical proximity can have such a devastating effect on victims.
I don’t think either law enforcement or the legal system recognises the sheer reach of the Internet or the power that it has over every aspect of daily lives. For example, Googling a potential employee is now commonplace irrespective of whether it contravenes local laws and a report on pre-employment screening on the Internet noted that over half of applicants were not hired as a result of information found on a search engine.
Google gives Ripoff Report a high page rank, and because in Australia Google is considered to be a trustworthy company, the perception is that the material is true because it is published in a prominent position on Google – and this ends up affecting every area of one’s life. In my particular situation, I received threatening phone calls because a post on Ripoff Report urged readers to harass me. The threats to kill my pets were really frightening and I actually tried to obtain assistance from the Australian Federal Police and from the American Embassy, but was told nothing could be legally done.
Some people hold the view that the victim caused the behaviour by simply using the Internet. This thesis of victim blaming as a way to account for the existence of social problems was first postulated by Ryan in 1971. This is the same archaic argument that has been used against rape and crime victims. My experiences thus far indicates that this perspective is prevalent among some members of the legal and law enforcement communities with respect to the problem of cyberbullying.
Although forensic law enforcement is a rapidly developing occupation, many traditional law enforcement officers do not have the skills to investigate these crimes and it is easier to put cyberbullying in the “too hard to deal with” basket.
CiviliNation: What role do you believe the law should play in helping reduce online attacks and adult cyberbullying?
Janice Duffy: I think that there should be laws that allow victims to sue the website, search engine, or social media company that causes harm. One excuse I’ve heard used by Google is that they provide their products free to users. But Google and Facebook are profitable corporations and should be regulated by the same laws that provide other consumer products, even if the victim is not directly engaged in a transaction. If I am walking through a mall and a brick falls on my head the law says I can sue the company that owns the mall. This same legal approach should apply. In Australia two recent court decisions have put responsibility onto search engines for their search results: The Full Bench of the Federal Court found that Google was responsible for the advertisements it provided on its search results (Google has lodged an appeal to the high Court) and Yahoo was found liable in a defamation case against a local man (Yahoo has not appealed this decision).
Privacy legislation in the UK and Europe is undergoing revision, and the role of search engines and social media websites to protect people is an integral aspect of proposed changes. This is a positive development. However, in the U.S. Section 230 of the Communications Decency Act is a significant impediment to legal protection from cyberbullying because even if the perpetrators of the statement are successfully sued, the damage continues if it is not removed from websites and search engines. While it may be possible to compel Google and Facebook to remove material by court order in non-U.S. nations, American websites can successfully claim protection under the CDA. In fact Ripoff Report taunts victims with this law, and U.S. courts have upheld its right to publish material that is used to cyberbully victims.
One possible approach to dealing with the issue of online defamation may be the creation of independent arbitrators that handle such matters. A couple of years ago in Australia the idea of appointing an Internet ombudsman was discussed. This stemmed from a situation where a local Aboriginal man complained to the Australian Human Rights Commission about extremely racist material published on the website Encyclopedia Dramatica. Google removed the links as a result of this complaint, but now the links are unfortunately back online. Like Ripoff Report, Encyclopedia Dramatic used a tactic of individual attacks to dissuade complaints. Unfortunately the idea of an ombudsman did not progress in Australia, but I believe a similar idea of search engines and websites agreeing to remove material has been investigated in the UK.
Most victims of cyberbullying (including myself) do not want to take legal action and would be happy to just make it “go away” more easily. The difficulty with the international nature of the Internet is finding a way to stop the harassment and establishing a program using independent arbitrators is a viable solution.
Additionally, legislation to update privacy laws in Europe and the UK in line with the new requirements of technology offers promise for victims of cyberbullying. Legislation and government proposals include a mechanism to facilitate the removal of material from search engines. Most victims simply want one action to occur – to make the cyberbullying stop and remove it from public view. The search engines have the ability to make this happen, but they choose not to use it unless forced by a court order. This fact was not lost on the British House of Lords and the House of Commons, which stated:
“Google acknowledged that it was possible to develop the technology proactively to monitor websites for such material in order that the material does not appear in the results of searches. We find their objections in principle to developing such technology totally unconvincing. Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology. We recommend that if legislation is necessary to require them to do so it should be introduced.”
The recent European proposals to harmonise privacy laws across the 27 EU nations included a law termed “the right to be forgotten.” This law requires search engines and websites to delete information upon a request from a consumers, or risk a fine of up to two per cent of a firm’s global turnover. Although ratification of this bill by the European national governments could delay its implementation, it is a really promising legislative development and has the potential to mitigate the harmful effects of cyberbullying.