Woman Wins Defamation Case Against Google
In 2022, I agreed to work as an expert witness in a lawsuit involving a woman who sued Google over defamation claims.
It was a lawsuit in the Supreme Court of South Australia, the civil division. The woman involved, Dr. Janice Duffy, had already previously prevailed in a lawsuit against Google over the matter, and the company had essentially dragged its feet and balked at complying with the earlier suit.
The essential facts of the case were that Dr. Duffy had originally been subjected to some disparaging and defamatory posts published to target and harass her on Ripoff Report, a notorious website known for hosting defamatory materials about individuals and organizations, and the company is what I would refer to as a thinly-veiled, barely-legal extortion business that intentionally used the Communications Decency Act of 1996, Section 230, to protect itself from all accountability regarding the materials published on its website.
The organization’s very name, “Ripoff Report,” is instantly negative when associated with a business name. While having a company page on Facebook, LinkedIn, or the Better Business Bureau is not immediately a reputation issue, because those websites’ names are neutral, having a listing from “Ripoff Report” appear in the search results when one searches for a business name immediately conveys the negative imputation that the company must be a “ripoff”. It is similarly damaging for individuals.
Section 230 was instituted in order to reduce legal burdens for internet businesses as the commercialized internet was getting underway. It established that for internet publications — many types of websites of every kind — the publisher could not be made liable for content provided or produced by third parties. Thus, search engines could not be sued for the listings appearing in search results, although the party behind webpages appearing there might be. Social media platforms could not be held responsible for materials their users posted. Blogs or group forums could not be held responsible for comments posted by others. Etc. (There are a few exceptions, such as for copyright-infringing materials.)
In many instances, one could sue the person(s) who posted something defamatory directly — such as a blogger who posted false info, or a person posting on social media, or a person who posted a false business review. If one obtained a court order, one might compel the defamer to remove their content or assist with trying to remove it. If they published it themselves on their own website or blog, they could just delete it directory — or, they could delete it on websites that allowed one to modify or delete posted materials, such as one’s social media accounts. However, Ripoff Report is a different beast, insisting that materials once published could never be unpublished. They would not allow the original author of defamation to remove anything. Under Section 230, they could not be made to delete such items, even if it was well-established to be harmful and false. They would, however, for a fee, de-optimize materials some, by stating they had reviewed materials and determined it was likely to be false. But, they would not remove the stuff — and, to have such “editorial review” content published on the defamatory material page, one might have to pay significant fees on an ongoing, monthly or yearly basis. Such fees could be extraordinarily large in the case of large companies.
Ripoff Report was a business registered in the United States, so if material targeting persons or organizations in other countries was published on it, those defamed had no more power to have it removed from Ripoff Report than people in the U.S..
Under Australian laws, a defamed person has the right to have content removed. Since Google does business in Australia as well as other countries, Google is subject to Australian law for the content it shows to search users there. Since Google is liable under AU laws, someone there defamed on Ripoff Report could send Google a request to have the Ripoff Report listing removed from their name search results, and Google should comply with the request.
This is the scenario that Dr. Duffy was dealing with. She had been defamed on a Ripoff Report page, and she had sent Google a removal demand. Google had not then removed the content, so Dr. Duffy sued them. The court had ruled they must remove it. But, after some years, they had not done so.
So, Dr. Duffy sued them again. Not having endless resources, she in fact sued them pro se — thus, she represented herself in court. After her initial court case, she had learned a sufficient amount to be able to represent herself.
When Dr. Duffy approached me to work on her case, I had previously served as an expert witness in a well-publicized case in the U.K. for a man who had sued Google there under similar circumstances — in that earlier case, he had been the subject of a concerted defamation campaign by persons unknown who had mischaracterized him in hundreds to thousands of online posts on blogs, forums, etc — they had mischaracterized him as a nazi or nazi sympathizer, a mafia banker, a pedophile, etc. He had an Online Reputation Management company and attorneys working on his behalf to send Google takedown requests, but Google was acting very slowly to perform the removals, and, not-infrequently, they declined to remove content when they claimed it was not present or when submitted URLs did not meet their required technical specification. In that earlier litigation, I had provided a substantial expert report that countered the report of their designated expert within the company, and I believe the effectiveness of my report helped to persuade Google to settle that case on the very eve before the trial was to begin.
In Dr. Duffy’s case, she had also submitted takedown requests to Google, but the way she had done it was to take a screenshot of the search results for her name, and then circle the listings that she needed removed.
Google responded that it had insufficient information to remove the specific search results.
This may seem silly in a way to you if you are highly proficient with the internet, but for someone who is not particularly involved in online technology, Google’s response also seems mystifying.
During the litigation, Google submitted expert reports from two of its engineers. I read their reports, and I was unsurprised to see some of the same sorts of dialogue I had seen in the earlier litigation in the U.K. case.
Dr. Duffy’s submission of a screen-grab of a search engine results page showed the defamatory listing as many listings appeared in Google search results — you could clearly see that the listing in question was for a page from ripoffreport.com, and you could see a significant portion of the page title with Dr. Duffy’s name, along with a snippet of text below the linked title that contained a sample of text from the page taht was definitely derogatory towards her.
Importantly, the listing displayed the page URL along with the listing, and Google’s search results display had abbreviated the listing so that one could not read the full URL. Google search did this when URLs were longer than the amount of text width they provided for in their listing system template, and when the URL was lopped off, they showed an ellipsis — the three periods following text that often are used to indicate that a text sequence has been cut off prematurely. (Example: “This sentence is chopped off abruptly…”)
In their reports, Google engineers claimed they needed full URLs in order to process removal requests because their database of URLs is so huge, containing trillions of pages, so it would be impossible to identify an incomplete URL in such a huge set. It is true that Google uses URLs essentially like unique identifiers of webpages and other types of web content, so it is also true that they would use an identified URL to be suppressed for certain keyword searches. But, that is not the full story.
I immediately found the argument to be so specious and so likely to be an outright lie in this case that I researched it further. On the face of it, this argument made me skeptical, because Google’s mission statement was “To organize the world’s information and make it universally accessible and useful.” They are the largest search engine on Earth, and they are claiming they cannot locate a search listing after being provided a screenshot of it? This just did not add up.
In fact, the listing provided some key elements that would enable people with fairly basic skills to locate the URL of the page in question. First of all, you could readily see that the website where the page was located was ripoffreport.com. So, instead of needing to search through “trillions” of webpages, Google removal request staff would only need to search through a much smaller set of webpages from a single domain name.
Google has long provided advanced search operators — ways of modifying searches to narrow down search results in various ways, such as by exact match of text sequences, character sequences in URLs or page titles, and by isolating results to single websites. They even provide an “advanced search form” for this purpose, although most users never use this, and most are likely unaware of it.
Using a “site:” search operator, followed by the domain name one desires to search, will allow one to search only for pages from the site specified. For instance, searching for “site:ripoffreport.com” in combination with other keywords will allow one to find only pages from Ripoff Report that are relevant for the search keyword.
Thus, the Google engineers were misleading the court when they claimed Dr. Duffy’s removal request was just so broad that it was unduly unburdensome and unworkable.
By adding in further qualifiers into the search query, I determined that Google personnel should have been able to readily locate the URLs Dr. Duffy needed to have removed. One could see from the screenshot some of the word sequences from the page’s title, and by combining an exact-match query specification with the “site:ripoffreport.com” search, one could then narrow down the search results to only the pages that contained mention of Dr. Duffy — just a handful or so. For instance, the full query could be:
site:ripoffreport.com intitle:”Janice Duffy”
And this provided just a few pages from Ripoff Report which matched the screenshot she had provided. Google personnel could have discovered the URLs in this manner and then removed them from her name search results.
For anyone experienced with Google’s systems, this process likely would require only a couple of minutes.
One could and should expect that Google’s search engineers are highly familiar with their various search operators, so when they wrote their reports, they had to be fully aware that this was completely possible.
I believe Google’s engineers approached writing their reports based strictly on the search engine’s existing policies and desired approach to complying with AU legal removal demands. And, it was a failure of Google’s AU counsel to recognize that this excuse did not adequately defend the search giant from the very simple claim being made to them. The truth is that it was not that they couldn’t find the offending URL to remove it — the truth is that they wanted people requesting removals to comply with their technical standards in requesting removals, and they did not desire to change that.
As a technologist, I recognize that there can be a reasonable basis for what they were actually arguing, but they pursued this in a disingenuous manner. They do need people requesting removals to adequately specify what needs to be removed — but, Dr. Duffy had actually done so — they were being needlessly pedantic and bureaucratic in claiming they could not satisfy her demand. And, they failed to review this before reaching a point where they were in severe lack of compliance with AU law.
During the brief segment of the trial where I was providing testimony, I also witnessed how intentionally insulting and disparaging Google’s counsel was of Dr. Duffy. She had complained to me during my work on her report and preparation for testifying that Google’s attorneys in Australia were intentionally insulting and demeaning towards her the entire time, and based on what little I witnessed I believe she is entirely accurate in that assessment.
In fact, I would go further — Google counsel in Australia were irresponsible in pursuing this conflict as long as they did, and they should have settled it out of court long before it reached trial. I believe that Google’s counsel in Australia may have had a conflict-of-interest in representing the corporation, because they could get far more in legal fees by stretching out the litigation than by settling it. In contrast, the legal team representing Google in the U.K. in my earlier case readily recognized they had far too weak a case once they reviewed my expert report, and they settled it in order to better control their overall outcome.
By not settling the AU case brought by Dr. Duffy, Google not only unnecessarily incurred a significant monetary settlement that they had to pay Dr. Duffy in addition to the legal fees from unnecessarily dragging out a legal case, but the case also established a legal precedent that raised further long-term liability for Google. The case established that publishers in AU can be responsible for defamatory URLs of pages created by other entities.
I was not the only expert witness that Dr. Duffy hired. She had also hired Zach Vorhies, a former Google and YouTube engineer who was known for releasing some of Google’s proprietary internal documentation related to search and claiming that it supported his assertions that Google biased its search in favor of particular politics and beliefs. Vorhies’ expert report in the case went on at some length about his perspective that Google manually censored search results, causing their algorithms to be biased, and that the documentation he released demonstrated that Google was technically able to remove Ripoff Report’s entire website from the search results, and that Google could censor the listings out of the search results that were at contention in Dr. Duffy’s complaint. I do not think he was particularly credible because of his well-publicized bias, and because he also might be deemed to be an ex-employee of Google with an axe to grind. He also did not have much or any real experience in serving as an expert witness, which likely contributed to him producing a very weak report.
The court apparently took the same view and excluded his entire expert report for not having sufficient probative value. In the final judgment, the justice wrote:
“The report of Mr Vorhies was not admitted because it largely expressed unsupported or irrelevant opinions, contained moral or value judgments, or stated opinions which the Court was required to determine as final issues on questions of fact or conclusions of law.”
The exclusion of Vorhies from the proceedings shows that not all expert witnesses are the same. While any expert witness can have some of their work excluded from a case (even top-notch experts can expect this to happen once in a while for various reasons ranging from valid ones to spurious ones), it is certainly far more likely to occur if the expert is inexperienced, poorly trained, and has not received good direction from the legal counsel they are working with.
It is worthwhile to note that the Australian court appeared to give great leeway to the fact that Dr. Duffy represented herself, and, as such, she was less familiar with legal procedures and requirements. If the court had been insistent upon applying the law without any flexibility, it could have derailed her case in several instances. I have watched judges deal with pro se litigants a number of times, and it requires a great deal of patience because they are often educating those litigants on law and procedure in the midst of trying to perform their regular functions. In Dr. Duffy’s case, what I witnessed was the Honourable Auxiliary Justice Tilmouth very sensitively and judiciously allowing imperfect documents and allowing latitude to correct imperfect procedural steps in order to facilitate the plaintiff’s quest for justice. Justice Tilmouth seemed kind while simultaneously maintaining neutrality and professionalism — not everything in the proceedings went Dr. Duffy’s way, and Tilmouth agreed with a number of Google’s counsel’s motions. It was pretty inspiring to see, because it would be very easy to be dismissive of a defamation victim’s needs when their unfamiliarity with attorney duties may result in expending greater amounts of the court’s time with matters that would otherwise be less likely to arise where everyone is well-versed in procedural requirements.
Justice Tilmouth’s oversight enabled Dr. Duffy to have a viable chance of getting justice. This sort of dedication to the well-being of all constituents is more needed in the judicial branch of government, the world over, since legal representation can be so costly.