Mad or Bad or Sad?: Google’s Three Million Dollar Failure
An invitation to write about my experience of suing Google arose from a Twitter discussion in which I objected to the contemptuous tone of an article by Marque Lawyers and reproduced in the independent publication New Matilda. I am used to lawyers writing commentary about my case without knowledge of the full facts but I find it particularly irksome when such commentary is written by Australian women and published by Australian online media and blogs, especially those that fly the rebel flag.
The editor asked me to write a response from my perspective. Unfortunately, upon submission of a draft it became clear that New Matilda was not an appropriate forum in which to publish. Last night I read a Medium.com article written by an American woman in tech, Marlene Jaeckel. In The Empress Has No Clothes: The Dark Underbelly of Women Who Code and Google Women Techmakers, Marlene describes her experience of ostracisation and defamation due to her support of James Damore, a Google employee who was fired because his views did not fit with the leftist ideology that dominates ‘Big Tech’. So rather than send this to other blogs and media outlets I decided to publish it myself. What follows is a slightly edited version of my draft submission to New Matilda.
Why Sue Google?
Between June and August 2015 I litigated a defamation trial in an Australian Supreme Court against all the legal muscle that can be bought by a corporation with a worth of $500 plus billion dollars. In the preceding weeks my lawyers had asked Google to mediate but they refused. I guess the search engine thought it would use its superior resources to win and that would be an example to other Australians who bothered them by asking for their rights. With no legal experience and 18 days notice before the trial because, after six years of pleading, notifying and litigating, my bank account was empty it was clear that I had no choice but to try and run the trial myself. Google had not only destroyed (and continue to harm) my employment chances but unless I fought them their lawyers would demand payment of substantial legal costs and would pursue me into a financial and physical grave.
By the time of the trial I had lost five years of potential earning power and the ability to enjoy a quiet life in a job that I loved. With a dominance of 93% of the Australian search engine market share Google is everywhere. The website on which I was defamed, RipoffReport.com, is enabled by its high Google page rank. This means that defamatory content is indexed at or near the top of the first page of Google searches for any individual or business. This website states that it never removes content (although that is incorrect) and charges exorbitant prices to ‘rehabilitate’ reputations on Google. Ripoffreport.com even displays on its websites examples of the Google search results before and after buying back reputation.
According to the former ‘public face’ of Google, Matt Cutts, the search engine has been aware of the ‘business practices’ of this website since at least 2008. But the ‘slippery slope’ of free speech excuse that was used by Cutts to excuse Google’s promotion of RipoffReport.com has a more sinister motive — money! As admitted by the editor of RipoffReport.com on Forbes.com, for more than a decade the website and Google earned millions of dollars of annual advertising revenue from destroying lives and businesses.
The End of Life as I Knew It
I am not technically gifted, and these days I am still pretty much a recovering Luddite. I fought the need to use computers as a graduate student and researched my PhD in a library. I am still a prolific user of anything tech-related that offers ‘help’ and the 16 GB of storage on my iPhone 4s continues to be more than sufficient for my app needs. In 2007, like most Australians, I knew very little about how the Internet worked. I did not use Google or social media and the only search results for my name on the Internet were a couple of vague references to previous research work.
That all changed when in 2009 I realised that my name, location, occupation, and employer were at the top of a Google search for my name couched in terms of ‘ripoff’, ‘scam’, and ‘fraud’ and in snippets that contained and opened to webpages publishing defamatory and false content that if read would guarantee that I would never again be employable. So how did I get myself into this? Well, contrary to the online judgements of those astute geniuses who passed judgements and offered opinions with zero regard to any evidence, I am not a ‘bunny boiler’ or ‘fatal attraction type of person’. This whole situation did not come about because of despair over an unrequited love.
I have a life long mood disorder and in 2006 I slipped into a major depression that lasted three long and dark years. Medical treatment failed and workplace issues of bullying and sexual harassment exacerbated it. In an attempt to find a way to manage the depression and continue to function at work I joined an online depression support group. A lot of the members were ripped off by charlatans on a website called Kasamba which was designed to provide online ‘advice’ (although many of the advisers have dubious qualifications). I was conned for a short while and then formed another support group orientated to assist members to stop spending money on these people and seek proper treatment. But of course when former ‘targets’ joined the support group it meant that these ‘advisers’ lost money. They published the defamatory content about me on RipoffReport.com in order to stop their ‘clients’ from joining the support group.
In 2009 it took months of researching to figure out how to even get in touch with Google to request removal of the links. When I did find the correct email address (firstname.lastname@example.org) the search engine forced me to ‘jump through hoops’ by requesting a removal in Google’s own format and then replying with an automated refusal. My concerns notices sent by registered post to both Google Inc and Google Australia were subsequently ignored or refused.
In late 2009, after some research, I also found the cause of the major depressive episode: It was menopause. As someone with a lifelong mood disorder I have five times the risk factors of other women for a major depressive episode as a result of physiological changes. A local medical doctor did a blood test and discovered that I had virtually no progesterone or testosterone left in my body. He prescribed bio-identical hormone cream and within weeks the black depression had lifted. But, as 2010 commenced I faced a fight with both my employer and Google to in order to try and regain my life. I resigned in August 2010 simply because it was impossible to take on two legal battles. I really did just want to clear my name and get back to work. I just wanted the defamatory content removed.
What I did not fully realise at the time was that I faced an uphill battle. Two US laws protect online defamation Defendants. Section 230 of the Communications Decency Act absolves providers or users from liability as publishers of any information provided by another information content provider. The Speech Act effectively renders foreign libel judgments unenforceable in U.S. courts. These laws meant that it was pointless trying to obtain legal redress against the authors or the website. The only Common Law precedent was a 2009 English interlocutory decision in which the Judge ruled that Google was not the publisher in law of defamatory words that appeared in its search results, even though it had been notified.
After some research I realised that Google had been hedging its bets to fit local laws and filed what amounted to opposing arguments on liability and publication depending on the court. The search engine argued in the English courts that its search results were entirely automated. But at the same time Google argued in US courts that it controlled its search results and these results were its subjective opinion and hence its First Amendment right. This legal argument is summarised in a later Google sponsored publication by the law professor Eugene Volokh. So there was no common law precedent in 2010 and the cards were all stacked in Google’s favour. However, I retained a spark of hope, which I now realise was naïve optimism. In 2008 Google had quietly removed defamatory links about two Melbourne upmarket real estate agents after the first Directions Hearing in the Victorian Supreme Court.
I thought that if I filed proceedings Google might just remove the defamatory content and I could move on with my life. I was very wrong! Any ordinary Australian who has confronted corporations in legal matters knows that they will eviscerate lives without compunction. But it was clear that if I did not fight them, not only would Google take my ability to work and years of my life, but everything including my future. I had no other choice but to fight!
A Legal Tsunami
I filed defamation proceedings against Google in February 2011. I thought that the Defendant would simply agree to remove the defamatory content and I could walk away. Apparently Google realised that I was an ordinary citizen rather than a high profile Australian and therefore did not have the capital to finance a lawsuit against a corporation worth around USD$500 billion. They got that one right! For more than four years Google unleashed a tsunami of litigation tactics that were clearly designed to deep pocket me into giving up. It took a year and legal argument to compel Google to file a defence. Two conciliation conferences were an exercise in arrogance on the part of the Defendant and obtaining disclosure was yet another expensive nightmare.
In the first half of 2015 Google’s lawyers amped up their abject refusal to pursue any settlement that would avoid a trial. They were determined to crush me and this turned out to be an expensive mistake on the part of Google Australia and Google Inc.
Google Australia has argued in Australian courts is not responsible for search results but an affidavit submitted by Ashurst Australia clearly states that Michael Takeuchi, Head of Legal, Google Australia and New Zealand was instructing. After I realised I needed to take over my case I bought a spiral binder on eBay and churned out trial books and other legal documents on my old printer. On the first day of the trial I arrived at the Supreme Court with my trial books in a shopping trolley. I was so exhausted and stressed that I could barely stand up. The Defendant flew in most of its army of corporate and staff lawyers from interstate and they descended ‘en masse’ to the court and were clearly ‘baying for my blood’.
Mad, Bad or Sad?
The trial was harrowing. The legal muscle had set up camp at the Hilton Hotel to plot their ‘scorched earth’ defence. This meant that they would throw everything at me and decimate my character in the process. Each night I went home and curled up, buried my face in the scruff of my dog’s neck and sobbed. This was later verified by the Defendant’s own medical expert. At one stage during a lunch break I was crying outside the court and I begged Google’s lawyers to be fair and stop trying to annihilate my character. Their response was to ask me to withdraw the case. I refused and one of their barristers said, ‘Dr Duffy, call Lifeline’! I guess at that point the lawyers thought that they could treat me with disrespect and disregard because they thought that I would lose.
I have yet to work out whether the Defendant was trying to paint me as bad, mad or sad or all three. A ‘scorched earth’ defence is a less than ethical tactic used to annihilate victims in court by twisting the evidence to try and prove they were ‘mad’, ‘bad’, or ‘sad’. Because I was self-represented I did not have the experience or resources to adequately fight that defence. I later found out that the Defendant withheld work documents (obtained on subpoena) that would support my case and put documents into evidence from complaints that I had made about bullying and sexual harassment at my former workplace in order to advance its argument that I was a troublemaker, crazy or just plain bad. Justices can only rule on evidence filed in their court and, even though I won the Defendant did manage to do a hack job on my character.
The trial Justice split the trial into two parts. If I won on liability, which I did on 27 October 2015, the second trial was on damages. As noted by Justice Blue, the Defendant threw almost every available defence at me but focussed on trying to decimate my personality and argue that Google was not a publisher because it operated like a telephone service. At one point during closing legal arguments the Justice asked the Defendant if it really expected him to overturn a hundred years of Common Law. I then realised that I had a chance.
As soon as the trial hit the media the Defendant utilised one of its shills, the website Techdirt.com to ridicule me for fighting for my rights. Even before the Justice handed down his decision, Google marshalled its paid character assassins. I was described by pro Google bloggers as a ‘lunatic’, ‘evil’ and the cause of the end of free speech in Australia and the rest of the world. After my request on Twitter to Techdirt to at least remove the comments stating that I am a criminal, I decided not to engage. But Masnick and Cushing sent their devotees after me on my blog. After the trial became public one of the paid writers from RipoffReport.com was dispatched to spread false accusations that I am an extortionist who hired hackers and defamed Australian Federal Justices for the purpose of advancing my case, and am the business partner of a murderer.
In January 2016 Google filed an appeal. Although I knew that I was in safe legal hands I was exhausted and fearfull that the Defendant would again run a ‘scorched earth’ defence. This intention became clear when the Defendant tried and failed to get most of my evidence thrown out based on the seldom used ‘too much paper’ rule. Google was clearly scraping the bottom of the barrel with that one. The appeal was heard in May 2016 over a period of three and a half days. My legal team worked very hard. We were at Chambers by 7 am and left about 7 pm. I was still exhausted from the trial and trying to cope with the ensuing abuse and the only way that I could get through the appeal was to zone out and play with my phone whenever the Defendant annihilated my character in court, which was often. I literally broke out in hives a few days before the hearing. Luckily the weather was cool enough to wear long sleeves because my arms were covered in bleeding welts that only healed after the appeal.
The Price of the Legal Precedent
It is now seven years since I filed defamation proceedings against Google Inc and nine years since I first tried to find away to obtain removal of the defamatory content. I won at trial and for almost two years I held a common law precedent that was set as a self-represented litigant, or a ‘pro-se’. In October 2017 the Full Court handed down its appeal and my legal team superseded the Common Law legal precedent set at the trial.
Quite apart from the fact that my ability to work in my profession of medical and health research has been forever ruined the precedent has come with a significant emotional price. The impact of the ‘scorched earth’ defence remains on my character. In the two and a half years since Google was found liable at trial I have been pilloried on the Internet, attempts at intimidation were sent to my blog, webpages referring to me as an ugly whore’ (and worse) have been posted on Google blogs (and elsewhere) and threats of rape and violence have been sent to my blog and my home.
Sometime in early 2017 Google published my home address online via another of its shills, Lumendatabase.org. Google’s own disclosure showed that a legal document was sent to Google Inc from Google Australia and then passed onto Lumen Database. It appears Google must have caused them to publish my address as a punishment for winning my case. A notice about a successful German plaintiff was also published unredacted. The publication of my address contravenes the Australian Privacy Act and I have recently filed a complaint with the Office of the Australian Information Commissioner. For several months in 2017 my home address was available from a search for my name. This resulted in threats delivered to my home.
The document containing my home address was found by a local man who had been harassing me and published on his blog. The local police believed that I was really terrified and cautioned him. I also received threats by telephone to my landline, the phone used by my elderly father for whom I am a carer. A letter from Google and Techdirt.com supporters threatening violence was put in my letterbox. I am a licensed sporting shooter and I spent several weeks trying to sleep sitting up, with the light on and with a loaded gun in my bedside drawer. I was terrified!
Google have not and did not completely remove the defamatory material. I have sued them again because legal remedies imposed upon Google seem to be the only way to effect change to protect individuals from its untrammelled pursuit of profit at the expense of the safety, health and financial and emotional well being of users. Google Inc has been aware for almost five years that RipoffReport.com not only publishes identifying details about adults but also about minors. If that sounds paranoid consider that Google is a corporation that admitted it profited from advertising illegal pharmaceuticals, including controlled substances and high jacked legal remedies for victims of child sex trafficking.
I estimate Google’s own legal costs in my case to be in excess of AUD$3 million. It employed three law firms, two barristers and two QCs. Most of these flew in from interstate along with the Google in-house lawyers and often for just one Directions Hearing. They lost and yet, even though my legal costs are about one eighth of Google’s, almost six months after it lost the appeal they have not paid them. This means that I will likely lose a house that has been in my family for 70 years.
There is literally nowhere to hide from abuse or reputational damage and it destroys lives. The emotional and psychological impact of cyberbullying and cyber harassment is severe and victims are at higher risk for feelings of hopelessness, depression, anxiety and suicide ideation. This has certainly been my personal experience as well as that of the many Australians (and other nationalities) who have contacted me in the six years since my defamation case against Google became public. I won but the retribution meted out by Google, its shills, and RipoffReport.com has meant that as tough as I like to appear on Twitter or my blog, I have been agoraphobic and terrified in my own home and suffering from panic attacks if I have to leave my 95 year old father and my dog to even go to the shops.
I have spent months at a time waking up with the feeling that I just want to jump off a cliff. Of course I will not suicide simply because that would mean Google would win. They would be able to say to the court ‘see, she really was crazy and what she says about us using free speech as a weapon to profit from decimating the rights of individuals is just delusional’. I want to be around to say to people that if you believe Google is not evil ask the child victims of child sex trafficking in the I Am Jane Doe Film or the families of the Americans that died because Google was profiting from illegal pharmaceutical sales. Of course, to Google, these people, like all users, are just collateral damage.
In the nine years that I have been fighting to clear my name the online world has altered from a ‘wild west’ to a place in which the ‘we’re not responsible’ and ‘free speech’ diatribes are no longer universally accepted. The pathetic bleating by Google funded organisations such as the EFF and Techdirt that amending the law to protect child victims of sex trafficking will cause the global demise of free speech comes across as ridiculous rather than righteous.
History tells us that the exploitative profit-seeking practices of the dominant economic strata are eventually cowered by laws and legislation. Google is slowly being brought to heel from outside the US through law and legislation designed to protect individual rights to dignity, privacy, reputation and production and inside the US by a shift in public opinion that is impacting on those who make laws. The love affair between the Obama Administration and Big Tech is over. Google still buys influence but clearly the Trump administration it is not ‘in bed’ with Silicon Valley. In 2017 karma knocked on Google’s door in Congress, Australia and Europe and she is not going away.