Combatting cyberharassment, cyberstalking, and digital defamation has become an increasingly large part of our cultural dialogue, with everyone from celebrities to political figures weighing in. Thanks to the internet, we’ve found ways to communicate with one another on an incomprehensible scale; but as many have unfortunately learned, that same scale can be utilized by tormentors to harass, menace, and ruin the professional and personal lives of their victims, often without ever requiring the harasser to leave their home. When the effects of cyberharassment take a devastating turn, many are left wondering why the victim wasn’t sufficiently protected by the legal system.
As it turns out, pressing charges for digital harassment and defamation can be a time-consuming, expensive and invasive procedure. In many cases, it’s only a first step towards resolving a malicious reputation problem. We took a deep dive into the legal side of digital reputation and uncovered three recurrent problems victims face when pursuing legal action against online crimes:
1. When Your Attacker is Anonymous, Who Do You Sue?
Anonymity is both a digital blessing and a curse: when used for good, it can safeguard important whistleblowers and protect our First Amendment rights. However, in an alarming number of instances, anonymity emboldens malicious bullies to become ruthless in their pursuit to cause emotional distress online, and the facelessness of the internet actively shields them from facing any real-world consequences. As you may have guessed, this makes tracking an anonymous person down (to serve them court papers) an expensive, time-consuming, and difficult endeavor to pursue.
Identifying the anonymous
In some instances, a victim may be able to file a “Doe” subpoena on an intermediary (such as a website owner or Internet Service Provider) in order to expose the identity of the anonymous defamer. However, Doe subpoenas have no single uniform standard in the United States, and this inconsistency can lead to an imbalance in enforcement. Doe subpoenas also have legal limitations, and oftentimes require either the intermediary or the victim to attempt to contact the attacker to warn them of the subpoena.
If a victim cannot identify their attacker, their options for justice become limited. Through the Communications Decency Act, intermediaries such as Internet Service Providers (ISP’s), web forums, and social media sites can be legally protected from being held liable for content other users post using their services. Though many intermediaries choose to enact their own terms of services to police their own web properties, these rules vary in scope and enforcement from site to site. Websites such as Facebook and Twitter, for instance, do not actively moderate user behavior for abuse, choosing instead to rely on crowdsourcing methods like user-generated reporting to flag content on their sites, which then gets sent to a moderating team for verification.
With the infrastructure out of reach, online attackers have a fairly free reign to evade both legal and emotional consequence. For victims of cyberharassment, this can make tracking down their e-abuser an expensive pursuit, especially because:
2. Law Enforcement is Under-Equipped and Under-Trained in Cyber Crime.
One cyberstalking victim explained the process of reporting her attacker as follows:
“As I stood there at the precinct counter, tears welling up while I tried to communicate the suffocating threat I felt every day from someone who was essentially anonymous, the cop handed back my paperwork and said, “You can’t file against him without the perpetrator’s address.” I was shocked. It was up to me, not the police, to find out information about the person who threatened my life.”
Her case is not uncommon. In fact, it seems to be somewhat of a recurring theme. Time and time again, when victims go to report online harassers to law enforcement, they’re often turned away, or provided inadequate help. One author reported that while local law enforcement didn’t have the adequate resources to pursue her case, escalating her issue to a larger agency with better resources wasn’t any help, either, as these agencies did not have the bandwidth or the motivation to pursue individual cases. Another author, after receiving a bomb threat through her Twitter feed, reported being told to just simply “unplug” by the responding officer.
Overall, there seems to be a massive disconnect between how crimes committed in real life are treated and how crimes committed online are treated. Despite cyberharassment being linked to real-world emotional trauma, law enforcement seems limited in their ability to adequately assist in pursuing online abuse.
Pursuing justice for cyberharassment originating in other countries can be a nightmare. United States citizen Leandra Ramm was told by the FBI and the New York Police Department that there was nothing that she could do to prosecute her online tormentor, Colin Mak Yew Loong, because he committed his crimes in Singapore, a jurisdiction that does not have, nor is partial to enforce, cyberstalking laws. Despite it being incredibly easy to contact someone halfway across the globe online, there are currently no international agreements regarding cyberstalking. This allows abusers like Mak to internationally torment victims like Ramm without the threat of prosecution. It wasn’t until six years later, after Ramm raised the funds to hire a cybercrime expert and a legal team that could effectively navigate American and Singaporean law, that she was able to mount a case to prosecute and convict Mak.
However, even if you do receive adequate support, your problems may not be over yet.
3. Search Engines Will Continue to Index Defaming Content.
So let’s say you enter a best-case scenario: you build a case, you go to court, and you win. Your harasser removes the offending content and you’re awarded damages – case closed, right?
Not exactly. Pressing charges against an attacker, as it turns out, can attract a good deal of press attention, and this is where it gets messy for victims; if your initial grievance is that defamation or harassment hurt your reputation and caused you emotional distress, filing a lawsuit could potentially draw more attention to that very same distressing issue. While you may be able to receive monetary or criminal justice for your distress, it doesn’t truly undo the original damage, and in the case of your digital reputation, search engines can unfortunately help compound that damage.
Co-occurrence and the Snowball Effect
There are two fundamental search signals within a search algorithm that amplify the damage done by defamation and harassment: Digital co-occurrence and The Snowball Effect. The more a story is shared and circulated, the more search volume that subject tends to receive, causing a Snowball Effect. In some cases, Google will opt to add queries pertaining to a trending topic as a “suggested search” result, and includes them in their autocomplete feature. Once there, people that weren’t necessarily looking for information related to a topic may come across it due to Google’s suggestion.
The more times an event is reported on, shared and searched, the larger the snowball becomes. This can cause a story about a relatively unknown person who accidentally finds themselves in the limelight, for better or worse, to be immortalized in their search results, potentially until something of that magnitude happens again.
Similarly, digital co-occurrence is the increase in search engine association between two phrases that are repeated together over time. The theory is that Google can form an association between two phrases if they are repeatedly featured together; so if multiple sources report that “Jane Doe files lawsuit against John Smith,” there’s an increase in co-occurrence between the phrases “Jane Doe,” “lawsuit,” and “John Smith.” If a story about an unrelated lawsuit involving John Smith is then published in the future, it can actually drive authority to the existing article about Jane Doe’s lawsuit against John Smith.
More often than not, these two search signals place a disproportionate amount of weight on a singular event. For victims of personal, humiliating attacks, this can be a massive hurdle to overcome. As of right now, there’s unfortunately no clear-cut way to get around this legally: the law allows the media the freedom to report on court proceedings, which therein grants reporters the right to repeat defaming materials from trial testimony, even if that material is found to be untrue. 1
One case that attempted to circumvent this went poorly for the victim. In Hawaii, a woman who had hoped to sue her attacker for posting nude photos of her, requested to sue as “Jane Doe,” in order to protect her own integrity and reputation. The court denied her request. Similarly, The United States currently does not support any Right To Be Forgotten Laws, laws that could assist victims in de-indexing defamatory and inaccurate links from search engines. This means that a very embarrassing or personal court case could easily continue to haunt its victim long after it’s been settled.
And this is what the law does not fix: at the end of the day, many victims of defamation or harassment just want to restore control over their own lives, regain their peace-of-mind, and move on. Even if legal action succeeds in making a harasser stop, the subsequent press surrounding the lawsuit itself can leave victim’s search results in the exact same position that they were prior to the lawsuit.
So, what can I do?
It’s important for us to reiterate that we’re not legal experts, that this article is not intended to be given as legal advice or counsel, and that we would never discourage someone from seeking legal action against a cybercrime. However, when it comes to adapting to technology, the law is notoriously slow, and the personal distress cyberharassment causes can be overwhelming. If this is distressing to you, there are proactive steps you can take to reduce the damage done by harassers.
Share judiciously —Take particular care in what you choose to disclose in digital format, even if it’s in private mediums like chats and emails. Screenshots are the weapon of choice for blackmailers and extortionists, and you never want to be in a position where someone can use your own words against you. Never trust someone you don’t know personally with delicate information.
Look yourself up —Google yourself often to find strengths and weaknesses in your search results. Is the information accurate? Do your search results appear to be quality websites, or do they look untrustworthy or suspicious? If everything looks okay, make a habit of checking these results regularly to track for any abnormalities. If you’re really concerned, you can set up a Google Alert for yourself to monitor mentions of your name online.
Be proactive —Finally, you should invest in proactively protecting your digital reputation. It’s nearly impossible to know if someone in your life could turn around and hurt you, and without the appropriate legal infrastructure in place, taking your reputation into your own hands can be the best course of action to minimize any potential damage in the long run.
1. [The Law of Public Communication: Eighth Edition; Kent R. Middleton & William E. Lee; 2011]↩