In the light of the recent hoo-hah discussed by SL here involving Melinda Tankard-Reist suing blogger Jennifer Wilson for defamation I thought I might revisit the notion of the Streisand effect, because as Russell Blackford has commented, we may be seeing an instance of it unfolding before our eyes.
The term Streisand effect was coined after Barbra Streisand unsuccessfully attempted to sue photographers for US$50M in an attempt to have an aerial photograph of her mansion removed from a publicly available collection of 12,000 California coastline photographs, citing privacy concerns. As a result, public interest in the picture increased substantially and it became popular on the Internet, with more than 420,000 people visiting the site over the next month. In other words, the Streisand effect covers those situations where the threat of legal action has brought publicity to the information sought to be suppressed.
Long-time readers of the blog will know that I have a strange fascination with defamation cases which result in the precise opposite outcome to that which the plaintiff sought to achieve. If the plaintiff had just left the defamatory statement alone, then fewer people would have known about it. In a lot of cases, I suspect that alleged defamers are so intimidated by an aggressive lawyerly letter that they withdraw whatever they have said, and the matter rests there. A particular problem with defamation cases is the risk of “SLAPP suits” (strategic lawsuits against public participation): i.e. cases which are brought to threaten and intimidate, and to prevent public discussion of an issue, rather than to vindicate any right of the plaintiff. However, I’m not going to enter into detailed discussion of SLAPP suits here: it’s the cases where the decision to bring or threaten defamation proceedings backfires spectacularly that interest me.
Here are some instances of the Streisand effect in action with regard to defamation suits and the like that I have discussed on the blog over the years:
- “Officer Bubbles”: a Toronto police officer sued YouTube in an effort to get it to reveal the identity of anonymous online users who had abused him. The police officer was filmed during protests in Toronto telling a young female protestor that she would be arrested for assault if she continued blowing bubbles in his face. This led to him being nicknamed “Officer Bubbles”, and clips of the confrontation drew unpleasant and defamatory comments about him. In addition, an anonymous person created a series of derisory cartoons featuring Officer Bubbles as the chief character.
- Liskula Cohen: The New York model Liskula Cohen sued Blogger to obtain the identity of the author of a blog called “Skanks in NYC” which was devoted to criticising Cohen and certainly contained some very unpleasant comments about her.
- T & J Towing: A university student wrote a critical review of T & J Towing, inviting others to share their unhappy stories of the company’s conduct, which led to the formation of a Facebook group Kalamazoo Residents against T&J Towing. T & J Towing issued a ‘cease and desist’ order and sought removal of the Facebook group, and also claimed $750k in damages. The extraordinary claim in damages led to the story going viral, first in the US and then globally.
- Glenn Beck: US shock jock Glenn Beck sued a person who set up a website satirising Beck’s shock jock techniques. The website pretended there was a rumour that Beck raped and murdered a young girl in 1990, saying, inter alia, “We don’t claim to know the truth — only that [the rumour] should be discussed. So we’re going to do our part to try and help get to the bottom of this. Why won’t Glenn Beck deny these allegations? We’re not accusing Glenn Beck of [the rumour] – in fact, we think he didn’t! But we can’t help but wonder, since he has failed to deny these horrible allegations. Why won’t he deny [the rumour]?” Beck sued to discover the identity of the website author and to demand that the website be taken down.
- Keysar Trad: the founder of the Islamic Friendship Association of Australia Inc and former spokesperson for Sheik Al-Hilaly sued radio 2GB for defamation for saying, inter alia, that he was violent and had offensive views. The trial judge found that the imputations with regard to violent and offensive views were correct. This was overturned on appeal, but 2GB only had to pay half of Trad’s costs on account of a legal technicality.
- Bruce Grobbelaar: The former Liverpool goalkeeper sued The Sun for libel. On appeal to the House of Lords, he was awarded “contemptuous damages” of only the lowest coin in the realm. Lord Bingham said: “The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection. Until 9 November 1994 when the newspaper published its first articles about him, the appellant’s public reputation was unblemished. But he had in fact acted in a way in which no decent or honest footballer would act and in a way which could, if not exposed and stamped on, undermine the integrity of a game which earns the loyalty and support of millions. Even if the newspaper had published no more than what, on my interpretation of the jury’s verdict, it was entitled to have published, the appellant would have been shown to have acted in a way which any right-thinking person would unequivocally condemn. It would be an affront to justice if a court of law were to award substantial damages to a man shown to have acted in such flagrant breach of his legal and moral obligations.”
With all of these people, because of the global nature of the media these days and the pervasiveness of the internet, the net effect of bringing a defamation action was to bring much wider prominence to the defamatory allegations, meaning that a lot more people knew about them than would otherwise be the case. Indeed, in some instances, the case went global. I doubt I’d ever have heard of many of these people, or (in the case of Trad and Beck) thought about their views and motivations in any detail, but for the legal actions they took.
It can be hard with some cases. With a case like the Liskula Cohen case, where there were genuinely unpleasant and creepy comments, I can understand why she sued: she was trying to vindicate her reputation and sense of injury. She was trying to find out who was behind the defamatory comments (and succeeded). She was trying to punish the person who was behind the comments (and succeeded). Finally, she was trying to protect her reputation, but by suing, she gave a far greater prominence to the defamatory comments than would otherwise be the case. It’s a hard choice with this kind of a case. I can also understand why “Officer Bubbles” was upset, given that violent threats had been made against him. With some of the other plaintiffs, I really think they’d have been better off just leaving it. The net effect of both the Trad case and the Beck case, for example, was to have people dissect the views of those individuals and to be extremely critical of them. They actually drew more criticism and scrutiny. The net effect of the Grobbelaar case was for the House of Lords to effectively decide that he had no good reputation. Definitely better off leaving it.
In the event, I think that the Melinda Tankard-Reist case might fall into the category of case where the bringing of a legal action just brings more criticism and scrutiny of that person’s views. Certainly there has been a number of blog posts and tweets which are very critical. Ms Tankard-Reist may also find that her name is forever linked with the allegedly defamatory statements in other people’s minds, even if she does get a court order taking them down. To explain what I mean by ‘linking’, whenever I think about poor Liskula Cohen, the words “NYC Skank” also come into my head (courtesy of the defamatory blog). Although I know the blog was defamatory, the notions of “NYC Skank” and “Liskula Cohen” are inextricably linked in my head. I wonder if the same may happen to me with Ms Tankard-Reist. Will the notions of Christian fundamentalism and duplicity pop into my head whenever I think of her, even if she does establish defamation and cause Ms Wilson to take down all her posts?
In addition, Ms Tankard-Reist’s legal action has led to a much larger audience being aware of the claims: for example, in The Age today, there was an article headed “Anti-porn activist threatens to sue blogger over religion claims” in which the general nature of Ms Wilson’s claims and the general nature of Ms Tankard-Reist’s objections were outlined.
Ultimately, a difficulty with tort is that you are always trying to repair an injury in an imperfect manner, and defamation is no exception to this rule. You can’t actually get something “unsaid”. And you have to be really careful when you do threaten people with defamation. Seeking to prevent things from being said is a lottery for plaintiffs. A defendant may comply meekly and the defamatory statement may disappear without a trace; but then again, a defendant may not comply. If she does not comply, it may result in unexpected outcomes for a plaintiff, including national or global publicity of a claim. Sometimes, as in the Trad case or the Beck case, it may result in increased scrutiny of the plaintiff’s view. In extreme cases, it may lead to a judicial decision that the plaintiff does not have a good reputation (trial judge in Trad) or that the plaintiff has in fact been duplicitous as alleged (Grobbelaar).
I don’t presume to know what the ultimate outcome for Ms Tankard-Reist’s case will be – I certainly do not have enough information to make a call on that, and nor would it be appropriate for me to do so. However, as far as I can see, she is already suffering from two or possibly three negative aspects of the Streisand effect: national publicity of the claims against her, increased scrutiny rather than a cessation of scrutiny of her views, and a potential linking of her name with the defamatory allegations in the minds of the public.