18 Aug Don’t Make It Worse: Responding to Online Defamation Without Triggering The Streisand Effect

Posted at 22:27h in Litigation by

Lawyers are supposed to make their clients’ lives better, not worse. But we can make things worse, much worse, when we rush into a realm we don’t understand. This is particularly a problem when a client comes to us enraged about something written about them on the internet.

Most lawyers have experienced it: a client discovers that a web site makes false claims about them, and wants it taken down. The lawyer may know his or her tools: the demand letter and the defamation lawsuit. But the lawyer can dramatically magnify the client’s reputation problem by using those tools carelessly. The internet has a distinct culture, and part of that culture is an ingrained hostility to anything perceived as censorship. The result is called the “Streisand Effect” — the tendency of legal threats against online content to draw many more eyes to that content. It’s named after Barbra Streisand, whose legal threats designed to suppress online pictures of her home led to hundreds of thousands of people seeing those pictures. Bumptious legal threats are a popular topic of discussion online, and many blogs cover them gleefully. An ill-considered legal threat can expose a client to widespread humiliation and lead to many more people viewing the content the client is mad about.

Streisand had a bad claim. But sometimes clients have valid claims: sometimes they are faced with genuinely false and defamatory online statements about them or their business. How can a responsible lawyer address that without triggering the Streisand Effect and doing more harm than good?

The answer, as always, is subject matter expertise, preparation, and professionalism. Here are some guidelines to a takedown letter that minimizes the risk of a backlash:

Know your free speech law. Meritless legal claims are much more likely to trigger the Streisand Effect and expose your client to ridicule. Be a vigorous advocate, but — as you would anywhere else — avoid making arguments that contradict well-known free speech law. For instance, don’t write to a web site about content in its comments unless you are familiar with Section 230 of the Communications Decency Act of 1996, which broadly immunizes sites from defamation claims based on visitor comments. Don’t threaten a site based on criticism of your client unless you have a firm grasp of the distinction between false statements of fact (which may be defamatory) and mere insults, hyperbole, and opinion based on disclosed facts (which are protected by the First Amendment). Don’t threaten to get an injunction taking a web page down because of defamatory content until you’re familiar with the prior restraint doctrine that generally prohibits such injunctions. The more wrong about the law you are, the more likely your threat is to go viral.

Know your audience: Do you understand the web site your client is complaining about? If you don’t, you’re taking a major risk with your client’s reputation. Some sites, thanks to their culture and habits, are much more likely to publish a threat letter and re-publish the damaging statements about your client. A competent lawyer should look into the target site and weigh risks and rewards accordingly. Moreover, whether a statement is defamatory may turn on the nature of the site. Whether a statement is taken as one of fact (and therefore potentially defamatory) or parody and satire (and therefore protected) turns on how an audience familiar with the speaker would interpret it. If you threaten a satirical site over content that any fan of the site will read as satire, you and your client will look foolish.

Be specific, not generic: Vague takedown demand letters are much more likely to trigger the Streisand Effect and go viral. If your demand letter doesn’t specify exactly what content on a web site is false, readers will assume — not unreasonably — that your true aim is to suppress any criticism of your client. In internet culture, that’s one of the gravest sins imaginable. Moreover, it’s impossible for a target to evaluate the legal merit of your claim if you don’t explain what content is false. “Your blog post is false and defamatory” is not specific. “Your blog post falsely says my client was convicted of a crime, but in fact he was arrested and never charged” is specific. As I noted above, make sure you’re clear on the distinction between fact and opinion.

Be professional: Lawyers love to write blustery, saber-rattling threat letters. But such letters are much more likely to go viral and damage your client’s reputation. Nobody likes a bully, especially online. A letter that offers extravagant threats and braggadocio is a tempting target for ridicule. Bear in mind that your audience may be not just the recipient of your letter, but anyone else who reads it when it is published online. Be clear, be concise, and be firm, but sound professional and reasonable like someone seeking to persuade, not like someone seeking to intimidate. An ideal defamation takedown letter conveys that you are in the right and that a reasonable recipient would comply because it’s the right thing to do, not out of fear. Such a letter doesn’t stir drama and therefore is a poor candidate to go viral.

A lawyer unfamiliar with the culture can be as dangerous as a lawyer unfamiliar with the facts or the law. Make sure you know what you’re doing before you make a takedown demand on behalf of a client.

Ken White

Ken White

Ken White is a founding partner of Brown White & Osborn LLP. He focuses on criminal defense and civil litigation, and particularly on white collar crime and First Amendment issues. He is a contributor to the Brown White & Osborn LLP blog.
Ken White

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