Business Law & Compliance

The Streisand effect: Don't harm your own business

8 min read

28 May 2012

Look at these examples of court cases won and lost, and you'll think twice before you take legal action yourself.

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.

The defendant, a Mr. Raphael who was a friend of Mr. Firsht and knew him professionally, had his identity revealed after Firsht’s lawyers sent a takedown notice to Facebook and obtained a Norwich Pharmacal order. The order required Facebook to disclose not only the registration data, but also details of the IP addresses and email addresses used when creating the profile.

The profile had in fact been created by someone at Mr. Raphael’s IP address. The same IP address was also used during this time to log in to two other Facebook accounts: Mr. Raphael’s account and Mr. Raphael’s girlfriend’s account. The fake account had only been signed into from two different computers at the IP address: Mr. Raphael’s computer and his girlfriend’s laptop. These facts were not refuted by Mr. Raphael.

The case gets even stranger. Mr. Raphael’s defence was that he did not create the profile. The evening the profile was created, him and his girlfriend had met a group of strangers at a bar, who returned home with them and spent the night. He said that one of them must have created the profile from his computer. He could not give an explanation of how someone else had been logging into the account from his IP address on the subsequent times the account had been accessed… which would have been after the profile-creating stranger had left his home. Instead he chose to rely on alibi evidence that he had not been at home on the other occasions when the Facebook profile had been accessed.

The judge couldn’t quite believe this story. He decided that Mr. Raphael had been the one to put up the false profile and the defamatory group. Although the profile was not visible for a considerable length of time – only 16 days – the judge ruled that due to the popularity and nature of Facebook, which targeted the material towards people who knew Mr. Firsht personally, the materials were particularly damaging.

The Judge also ruled that the allegations of dishonesty were serious enough to harm Mr. Firsht’s business and awarded £15,000 to Mr. Firsht personally, £5,000 to his business and an extra £2,000 for breach of his privacy. In this case, Mr. Raphael learned to his chagrin that comments made online can be costly and that lawyers can often get around the anonymity problem easily.

As for our client, he improved his operations to address the forum comments, but the unflattering material on Google remained. We used reverse search engine optimisation techniques to push the forum and blog off the first page of Google, and helped improve the business’ online presence.

Finally, the business registered on forums using its own name, and engaged with detractors by starting a positive dialogue. Acknowledging the concerns of the commenters, and explaining how the problems were caused by temporary blips, it was possible to turn a negative situation around. He listened, engaged and acted on feedback.

To protect your brand online, consider the tools at your disposal. Take care when choosing which you use and when you use it. You don’t want to cause more damage to your reputation when you are trying to rectify an adverse situation.

Shireen Smith is the founder of Azrights Solicitors, a law firm specialising in online brand and intellectual property issue, and the author of “Legally Branded.”