Defamation Law: Understanding and Avoiding the Streisand Effect

When you discover a defamatory statement about your business online—say a negative Yelp review—the natural instinct is to address the lie head on, maybe even try to have the statement removed to avoid it from spreading and being read by others. But what happens when the attempt to control the spread of a negative statement simply brings more publicity to it? In defamation and libel law, this is what is commonly known as the “Streisand Effect.”

The term Streisand Effect stems from the unsuccessful efforts of actress Barbara Streisand to suppress a photograph of her coastal mansion and the unintended consequences of those efforts. In 2002, a photographer took more than 12,000 photos of the California coastline and placed them in an online database as part of an effort of a government sanctioned project to document coastal erosion. Among those 12,000 or more photos was an aerial photograph of the blufftop estate of Barbara Streisand. Ms. Streisand sued the photographer and the companies hosting the image claiming an invasion of privacy and seeking more than $50 million in damages. Ms. Streisand’s lawsuit was ultimately dismissed but, even worse, her efforts to keep the mansion out of the public eye had the exact opposite effect. Records show that prior to the lawsuit, the image had been downloaded a total of 6 times—with 2 of the downloads coming from her attorneys. Following her filing of the lawsuit, the image was downloaded more than 420,000 times in a single month.

The moral of the story is that if Ms. Streisand had not attempted to censor the image of her home and have it scrubbed from the internet, it is likely that almost no one would have ever known of its existence. But by drawing attention to the image, it had the opposite of the intended effect and made the image an internet sensation—before going viral online was even a thing. Today, the term Streisand Effect has come to mean any attempt to suppress information that has the unintended consequence of stimulating greater demand for information than if nothing had been done. The Streisand Effect is particularly associated with the internet where the spread of information is easy and quick.

A business attempting to address a negative statement or review online must be careful and calculated in its response to avoid triggering the Streisand Effect. An overly aggressive cease-and-desist letter filled with vague, empty legal threats can expose a business to humiliation and result in many more people viewing the negative statement or review than ever would have otherwise. Before firing off a saber-rattling cease-and-desist letter, a business owner must consider a few things. The first is that the letter must be specific and not generic. The letter should identify specific statements that are verifiably false and could be proven to be defamatory in a future lawsuit. Generic references to the review as a whole coupled with threats of recovering exorbitant damages without identifying particular false statements is likely to be viewed simply as an attempt to suppress speech, which greatly increases the chances of triggering an undesired response from the recipient of such threats.

A well-written cease-and-desist letter should also be written in a professional tone that demonstrates a firm grasp of defamation and free speech law. Sending a blustery, over-the-top letter that promises to have statements of opinion removed from the internet is unlikely to achieve the intended result but could lead to ridicule of the business if the letter is subsequently published online and becomes associated with your business in search engine results.

A poor response to a negative review online can be worse than no response at all. For these reasons, it is highly recommended to consult with an experienced defamation and libel law attorney who will be able to advise on the correct approach to defamatory reviews online and if need be can craft a measured response that strikes the right tone and minimizes the changes of triggering the Streisand Effect.

Lubin Austermuehle’s DuPage County defamation, libel and slander lawyers near Evanston and Schaumburg have more than three decades of experience helping business clients unravel the complexities of Illinois and out-of-state defamation and libel laws. Our Chicago defamation, libel and slander attorneys assist businesses and owners who are the victims of defamatory and slanderous attacks on their businesses and reputations. We also handle emergency commercial litigation involving preliminary injunctions and temporary restraining orders (TROs), defamation, libel, and covenants not to compete, franchise, distributor and dealer wrongful termination, and trade secrets along with various other types of business disputes involving shareholders, partnerships, closely held businesses and employee or executive breaches of fiduciary duties. Our Naperville business litigation lawyers represent individuals, family businesses, and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Chicago, Elmhurst and Wilmette, near Park Ridge and Highland Park, we serve clients throughout Illinois and the Midwest. You can contact us online here, or call us on our toll free-number at 833-306-4933 or locally at 630-333-0333.

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