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The Streisand Effect

By Legal Eagle

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.

40 Comments

  1. Tim
    Posted January 17, 2012 at 8:31 am | Permalink

    Imo defamation suits create positive externalities. They cause potential defamers not to say defamatory things (because they fear a lawsuit might result).

  2. Tim
    Posted January 17, 2012 at 8:50 am | Permalink

    Slight correction. My point was not that people fear defamation (although they do), but that the fear of a defamation lawsuit is prophylactic.

    I’m not sure that fear of legal action deters bloggers from discussing certain topics. I suspect it just, wholesomely, deters them from committing torts while discussing such topics.

    Do you avoid whole topics because of fear of litigation?

    Whether an action backfires depends on what the plaintiff sought in the action. If she sought, as I suspect she did, a cathartic legal experience, and the vindicative feeling of having struck back at a tortfeasor, and having at least gotten her version out onto the public record, then I’m not sure such an action backfires, though some surely do.

  3. Tim
    Posted January 17, 2012 at 9:10 am | Permalink

    I hear what you’re saying.

    I happen to think there’s too much defamation in the world. I think one’s position on defamation lawsuits can be affected by one’s opinion of whether there’s unremedied defamation out there. I think there is. I’ve been defamed online. Thomas Jefferson said something like this. Take my goods and you set me back. Take my reputation and you make me poor indeed. For it cannot be recovered.

    I think there are too few defamation actions, in some places. And, again in some places, there are online speakers who have too little knowledge of that of which they speak, and are too eager to use ad hominem remarks, sometimes false and defamatory ones.

    But I certainly cannot disagree with the overall point you make that a lawsuit, for defamation or anything else, can backfire, and can do more harm than good. Hard to tell the poison from the cure sometimes. And one can hardly disagree with the advice to take such matters very carefully.

    I think that using the standard of what can “fix the problem” may not be the right standard. Nothing can fix defamation. Theoretically, damages can. But when defamation has occurred, damages may not be an adequate remedy (which is, I presume, why we have equitable remedies!;).

    Ftr, I don’t argue that defamation is prophylactic. I argue that defamation lawsuits can be prophylactic. I’m a stickler. :)

  4. conrad
    Posted January 17, 2012 at 9:24 am | Permalink

    I agree — and from the articles in the papers about it, now I (and presumably everyone else that had never heard of her) also knows that she’s obviously associated with what I consider all sorts of strongly correlated nasty things (does that statement get me out of defamation ? :) , like anti-abortion stuff, looney Christian groups etc. . So she’s certainly in my loony-bin category.

    As for more scrutiny — I think this is a good thing since it should open up more discussion about both the nature of the claims being made, the reliablity and validity of any “data”, and the way people try and frame these issues, despite lack of any compelling evidence to support them (and more crazy stuff, like the way she abuses the term “feminist”).

  5. Tim
    Posted January 17, 2012 at 9:40 am | Permalink

    Those *nasty* anti-abortion, looney Christian types! We all know how horrible they are!

  6. Dan
    Posted January 17, 2012 at 9:43 am | Permalink

    In my limited experience of it in practice, defamation seems to be the most “it’s the principle” type of litigation that there is. There have been very few defamation actions in Australia which have resulted in a significant financial compensation so most people pursue (or threaten to pursue) to extract an apology or retraction.

    I agree that this acts generally as a prophylactic, and in many many cases the ‘remedy’ is simply the initial demand and often the response is simply to offer an immediate apology/correction.

    But the whole notion of it has to be that shining light on the dispute will not in itself adversely affect the person’s reputation. I guess the overlay of social media, particularly in a relatively small pond like the Australian political blogosphere brings the situation into sharper relief.

  7. Posted January 17, 2012 at 10:54 am | Permalink

    Maybe I’m reading this through very British eyes, in the light of Leveson etc, but if I were MTR, I’d be far more annoyed about the geographical location of my church being revealed. I’ve had far worse said about me and just laughed it off – the stuff that really hurt was stalking, being followed etc.

    This is why I flagged the privacy issues in my post, even though they’re really not relevant in Australia. It’s the sort of thing where you can just imagine someone who doesn’t like you waiting outside with a custard pie – or worse. Tangential, I know, but there it is.

  8. Posted January 17, 2012 at 10:58 am | Permalink

    Also, apologies for my lack of visibility – back to work yesterday, and the paperwork landed on my desk with a sick thud. No-one does it for you while you’re on holiday…

  9. Mel
    Posted January 17, 2012 at 11:04 am | Permalink

    Tim @9:

    “Those *nasty* anti-abortion, looney Christian types! We all know how horrible they are!”

    Killing doctors, throwing blood on women entering abortion clinics etc.. Sounds nasty to me but maybe I’m just an overly sensitive type!

    MTR may not have shared a platform with the creeps in the above category but she has happily shared a platform with conservative Christians who preach gay hate and who indirectly lead to the deaths of homosexual males and females through acts of violence and suicide (I’m not sure what the figures are now but at one stage in NSW over 10% of all murders were anti-gay hate crimes).

  10. conrad
    Posted January 17, 2012 at 11:27 am | Permalink

    Tim, to quote the quote from the Age:

    “[Her] involvement with fundamentalist Christians opposed to abortion, contraception, surrogacy and homosexuality are well documented, and I have to wonder why she’s singled me out at this point in time for writing about her religious beliefs”

    So, apart from Mel’s comments, I think I missed being against contraception — which has obviously been a terrible thing for feminism.

  11. Jonathan D
    Posted January 17, 2012 at 12:45 pm | Permalink

    I find it slightly amusing that I have now heard of some of these negative comments because you list them as comments which reached a wider audience due to the litigation.

    In this case, if, as stated in The Age, MTR’s concern is the accusation that she’s duplicitous and deceptive, then this letter has not only drawn attention to the accusation, but added fuel to the fire. You’d think the idea that she’s stopping reporting of her beliefs with threats to sue would be the last thing she’d want going around!

  12. Dan
    Posted January 17, 2012 at 1:02 pm | Permalink

    SL @ 11 I think that there would have been a very different reaction if it was the geographic location of her home or, say, personal details of her children. The geographic location of her church is over the public/private divide but only just.

  13. derrida derider
    Posted January 17, 2012 at 1:36 pm | Permalink

    Of course there are defamation cases where publicity is precisely what is sought by the plaintiff. They seek public vindication beyond that available through a mealymouthed printed retraction or a cash settlement with a nondisclosure provision..

    That wonderful book “Great Legal Disasters” by Justice Tumim (if you haven’t read it, SL, do so – you would really enjoy it) describes a cross-examination of the plaintiff where the unwary defendant’s counsel said in effect “my client has printed a public apology, has destroyed all known copies of the offending photos and has made a generous settlement offer – what more can a jury verdict give you?” To which the reply was “It can tell the public that it was not me in those photos”.

  14. kvd
    Posted January 17, 2012 at 1:43 pm | Permalink

    LE this makes depressing reading. You are basically suggesting that the present legal framework provides a less than effective means of protecting or defending one’s personal or professional reputation. I am sure I am not alone in valuing those much more highly than the present size of my bank account.

    What I’d be interested in, from your perspective as a ‘legal person’, is any improvements or changes you consider might be made to maintain the free flow of opinion, but more effectively protect one’s reputation? Or do we all just have to suck it up, and live with what we’ve got?

  15. Posted January 17, 2012 at 2:27 pm | Permalink

    I bet the driver was advised not to apologise, too, on the basis that it would be an admission of liability…

  16. kvd
    Posted January 17, 2012 at 2:39 pm | Permalink

    LE@19 I very much agree with the education idea, and kudos to you lot for harping on it earlier in the life of blogs, and continuing to so do. Maybe instead of Conroy’s filter the various blog platforms could carry a list of words and before you hit post with ‘duplicitous’ you could be asked “are you really sure you want to say this?”

    ‘Geography’ also comes into it as well. I can easily live with my mate Mel calling me “duplicitous and deceptive” on this blog; I’d call him on it, and move on. But if he wandered into my village, or my business and held forth I’d sue his tiny arse off, for two reasons: damaging my reputation; misuse of the English language ;)

    MTR’s ‘geography’ is much wider than mine, and much more important to her than ever it could be to me – thankfully. So in some ways I can understand her angst.

  17. derrida derider
    Posted January 17, 2012 at 4:20 pm | Permalink

    Of course, even a defamation law that strikes a perfect balance that protects reputations while not chilling speech is no answer to the problem of SLAPP suits, simply because the suit need not have any legal merit to have the desired effect.

    If someone sends you a lawyer’s letter and can credibly imply that money is no object for them, then the fact that you will win in the end merit is beside the point. Unless you are both similarly well resourced and willing to waste months or even years of your life dealing with lawyers it is much easier just to apologise and shut up.

  18. Mel
    Posted January 17, 2012 at 5:58 pm | Permalink

    KVD:

    “MTR’s ‘geography’ is much wider than mine, and much more important to her than ever it could be to me … ”

    Is that supposed to be a fat joke? WTF is MTR’s geography?

    And when are you going to apologise to Jennifer Wilson for being such an whiney ass?

  19. paul walter
    Posted January 17, 2012 at 11:53 pm | Permalink

    Another brilliant thread and comments well worth considering.
    Thanks, all.

  20. kvd
    Posted January 18, 2012 at 4:46 pm | Permalink

    LE just thinking further on this, and with (was it) Russell Blackford’s linked commentary that the process should be a bit harder to invoke.

    I’m wondering if it should be necessary for the ‘injured party’ to
    1) have attempted to make direct, personal contact with the author of the material; and if unsatisfied
    2) have requested mediation at their own (or joint) cost

    BEFORE gaining the right to pursue the matter via legal proceedings, with all that entails.

    And 3) that the first step in any legal proceeding be compulsory mediation.

    Mediation seems to be getting more popular these days, and most times things can be resolved between reasonable people without the excessive expense involved in all out war.

  21. kvd
    Posted January 19, 2012 at 3:38 pm | Permalink

    JW is doing rather well on that site actually. The petition has 157 signatures at present.

    This compares to:
    2 for “Easy Worldwide Access For Episodes of My Little Pony”
    51 for “We Want Christopher Eccleston For The Doctor Who 50th Anniversary”
    and 2 for “Please Ignore – set up in error”

    I think, more seriously, it is worthwhile to read Jennifer’s latest post and to bear in mind that, as reported in the Fairfax press, MTR’s point of complaint is not about disclosure of her religion, but rather about being described as “deceptive and duplicitous” about her religious beliefs. This latest post does not address that point as far as I can tell.

    And for the life of me, I cannot see how JW’s quite well written original post containing those words loses one iota of merit by their excision. Or, equally, how they add anything.

    Now, I would not expect either of the legal principals of this blog to offer comment upon my layman’s opinion, but suffice to say, if you read the petition signatories’ comments, I doubt many actually grasp the difference between disputing MTR’s views and describing her as “deceptive and duplicitous about her religious beliefs”.

    I think MTR has over-reacted (or badly reacted); but I think JW should remove those words as irrelevant; and I think JW should ignore the applause which will not translate into sufficient money to support her “cause”, and get some proper considered legal advice IRL.

  22. Posted January 19, 2012 at 5:01 pm | Permalink

    Working on that now, kvd.

  23. Mel
    Posted January 19, 2012 at 6:37 pm | Permalink

    If MTR was an honest Christian she would turn the other cheek. The fact the she prefers the legal jackboot approach demonstrates clearly that she is a hypocrite and accordingly her character is rightly called into question. In the spirit of the vengeful God of the Old Testament, may her loins turn to water and her breath reek eternally of elderberries.

  24. Ripples
    Posted January 23, 2012 at 11:36 am | Permalink

    I for one would not have known or paid any real attention to the players in this little drama but for the Streisand Effect.

    I had never heard of the parties, never visited their blogs or interacted with any of their materials. Of course now I am sure many others like me have now found the players and are taking an interest in their blogs.

    I often see myself as an internet moth. I frequent only a few shinning blogs. When they point to a shinny new, interesting and curious idea or thought I will be attracted to the new light source for a little while. I am sure I am not alone and as such these types of events will attract moths like me to a new blog flame as it burns brightly.

    So the effect isn’t just making more people aware of the matter they are trying to address through suit. I also bring the parties to the attention of the internet moths that will come and flutter around. Not sure if that’s a desirable thing sometimes as some moths are potentially troll moths.

  25. Valerie Woodruffe
    Posted November 19, 2012 at 5:16 pm | Permalink

    No point in suing someone for defamation when they don’t have any money, or anything else worth having :cry:

  26. Someone Who Knows Th
    Posted November 20, 2012 at 8:11 am | Permalink

    There is every point in suing someone for defamation and slander. It is against the law and a recent internet troll was jailed for 18 months, That would make the point clearly, no doubt about it.

  27. Tim
    Posted November 20, 2012 at 11:10 am | Permalink

    You can be jailed just for being a troll?

  28. Posted November 20, 2012 at 11:47 am | Permalink

    You can if you put enough effort in.

  29. Valerie Woodruffe
    Posted November 20, 2012 at 1:30 pm | Permalink

    The truth is some people have a “VICTIM” mentality, and thrive on being the victims of trolls because they have no other excitement in their sad and lonely lives, otherwise they would close their facebook accounts completely until the trolls stopped :idea: Its no good complaining about trolls if you don’t take pro active action and close your social media accounts which are the source of the problem. And it’s a damn sight cheaper than suing someone and employing a lawyer :lol:

  30. Someone Who Knows Th
    Posted November 20, 2012 at 3:25 pm | Permalink

    While the trolls are busy trying to take over someone elses life. Their own is quickly slipping down the gurgler…how sad

7 Trackbacks

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