By Steve Levy
Way back near the dawn of the 21st century, before the tsunami that was to become known as “social media” crashed upon the shores of our collective notions of sanity, a photographer touched off what has become one of the earliest and most enduring internet memes that has since reverberated around the halls of law firms and corporate legal departments. This has led to endless hand-wringing over the question of whether to pursue a claim that could blow up in your face.
What started as an obscure environmental project become an international sensation when singer Barbara Streisand filed a lawsuit against a photographer who, while surveying beach erosion along the California coastline, took a series of aerial photographs, one of which included an image of the legendary singer’s home. These photographs were posted on the website of the California Coastal Records Project. Ms. Streisand claimed an invasion of her privacy and sought damages in the amount of USD $50 Million. The suit was eventually dismissed and Ms. Streisand was ordered to pay the photographer’s legal fees.
The first issue here is whether this was an overly-aggressive assertion of a legal claim that had very little chance of success. Apparently, Ms. Streisand’s name was associated with the photo of her home and she later remarked that she was concerned about security and home intruders, that her lawyers had exceeded their instructions by filing the lawsuit, and that she would have been satisfied if her name has simply been removed from the photo. So, it seems, that her lawyers could have handled this better if they had simply reached out to the photographer and sought to resolve the matter informally.
But it’s the second issue that has engraved her name in the minds of legal experts and that is whether it’s wise to pursue even a strong legal claim if it will ultimately do more harm than good. The photo of Ms. Streisand’s home was only viewed a total of six times before the lawsuit was filed. As most litigators know, major media outlets carefully watch the dockets of most courts and the lawsuit was quickly picked up by various publications. This led to the photograph being by viewed by more than 420,000 people in one month.
Brand owners often face situations where quick and aggressive legal action could trigger the Streisand Effect. When individuals create protest websites highlighting certain activities of the company, criticism of its senior executives, or negative reviews or other commentary about its products or services, they typically garner little traffic. A simple takedown may be possible but this may not be possible if the site can be said to be engaged in fair use or free speech. In these situations, the wiser course may be to simply monitor the situation for increased site traffic or greater attention on social or mainstream media. If things do heat up, it may be time to bring in the company’s PR department to formulate a response and, if a solid legal claim does exist, perhaps the company’s litigation team.
The lesson here is to very objectively and carefully consider the actual harm being caused by a given offense and then consider whether, by pursuing a legal claim, it may unintentionally draw far more attention to the situation, thus causing more brand or reputational harm than would have occurred had the situation been left to wallow in obscurity.