The Streisand effect: Don’t harm your own business

You would not expect legal action you take for damage to your reputation to end up harming you more. Online, this is precisely what can happen. Don’t fail to take account of how the internet alters the legal approach you might otherwise adopt.

With the dominance of the Internet in our lives it can be extremely damaging if your name is besmirched online. It happened to a recent client of ours: He consulted us because of unflattering comments about his business among the first ten search results on Google. These included two forums, a prominent news site, and a blog apparently dedicated to discrediting his business. Naturally, he was concerned.

He suspected a competitor was behind an anonymous comment, and wanted to know how to deal with the various search results. Could we help him remove these, perhaps by suing for defamation in the courts?

Looking at the situation, we knew right away that there was a genuine problem with the way the business was being run. One or two comments were arguably defamatory, but not all of them. Truth is a defence to defamation. Clearly, corrective action was needed by this business to address issues raised on these forums.

To unmask anonymous poster, sending threatening letters and initiating court proceedings are an option. Indeed, such steps may be taken to bully Internet Service Providers and forums into removing material, even the kind that’s only arguably defamatory. Entities lose their immunity from legal action for content they host once they receive notice of the existence of objectionable content. Some entities may cave in and simply remove offending material.

However, such a course of action carries a significant risk for a business.

Just look at the cases of Barbara Streisand and Alisher Usmanov. “Streisand Effect” is now a term for taking a heavy-handed legal approach that ends up backfiring, causing wider publicity for the information you were aiming to silence.

Web users believe they can say anything they want on the internet and not be held responsible. The courts are finding otherwise. In a recent English case, Applause Store Productions Ltd v Raphael, a man was held liable for comments made on Facebook. Although the limits of defamation law were hardly stretched, it’s interesting to see how the court responded.

The case involved Mathew Firsht, the owner of Applause Store Productions, a well known company which provides audiences for television shows. He did not have a Facebook account. In June 2007 a fake profile was placed on Facebook in an account under Mr. Firsht’s name. It featured extensive personal information about him, including his sexual orientation, political views, religious beliefs and a picture of himself – which was actually a copy of his twin brother’s profile picture. 

The profile also included a link to a Facebook Group called ‘Has Mathew Firsht lied to you?’. There was no dispute about whether the material was defamatory, but only over who had published it.

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