In the course of giving advice to a client yesterday I happened to mention that the client should be careful to avoid the Streisand Effect.
I posted about that phenomenon in Bytes on July 3 2011.
It is worth another airing, if only for the lawyers among us to add it to their legal advice bank.
On Streisand, Injunctions and Footballers
I recently came across the term Streisand Effect. This is when a person, often a celebrity, seeks to have information censored, suppressed or removed and the attempt backfires by causing much more attention than the item might otherwise have had.
It is named after an intervention by Barbara Streisand. In 2003 Kenneth Adelman was concerned with coastal erosion in California. His website contained over 12,000 photographs of the California coastline recording such erosion, amongst them an aerial photo of Barbara Streisand’s coastal Malibu home.
Notwithstanding that the photograph had received virtually no attention, Streisand filed a lawsuit to have the photograph removed on the basis that it invaded her privacy, thereby bringing both the photograph and her home to considerable prominence. The publicity generated by Streisand’s lawsuit helped drive 420,000 visits in a month to the site where the photo was published. According to documents filed in court, images of Streisand's house had been downloaded only six times before the legal action.
The term Streisand Effect was coined by Mike Masnick in 2005. It is likely that Barbara Streisand's name will now survive in that context long after her movies and music are forgotten
With the ease with which matters are posted and distributed on the internet, the Streisand Effect has scope for considerably wide and rapid dissemination when someone seeks to block information.
Recently in the UK there have been a number of cases where the Streisand Effect has focused attention on what have been referred to as “superinjunctions”. This is an injunction that not only restrains facts and allegations, it also prohibits disclosure of the existence and details of the injunction itself. An example of a superinjunction is that obtained in 2009 by a company Trafigura in respect of its handling of toxic waste. The company and its attack dog lawyers managed not only to restrain reporting, the judge prohibited even disclosure of an injunction being in place, a total white out. It came to light when raised in Parliament under the cover of parliamentary privilege, allowing the journalists to report on the original data and on the attempts to suppress it. The media is allowed to report on proceedings in Parliament and on what is discussed in Parliament.
Restraining journalists from writing a story is like waving the proverbial red rag at a bull, ensuring that once the restraint is lifted or circumvented, the coverage will be considerable and possibly more critical.
Apart from parliamentary disclosure, superinjunctions have also been defeated by being leaked. Circulation on the internet has then resulted in widespread discussion, often with follow up media attention.
By May 2011, the magazine Private Eye claimed to be aware of 53 superinjunctions and anonymised privacy injunctions in the UK, although an official report into superinjunctions claimed that only two had been issued since January 2010.
A number of superinjunctions have been raised in Parliament, including most recently that of prominent Manchester United footballer Ryan Giggs. Giggs had obtained a superinjunction to restrain disclosure of, and comment upon, an alleged affair with Welsh model and Big Brother participant Imogen Thomas. The newspapers champed at the bit to disclose the identity of the footballer and his dalliance, one even publishing his photograph on the front page with only the eyes blacked out, with the word “Censored” in capital letters. Much of the newspaper coverage contained criticisms of superinjunctions and the restrictions on both freedom of speech and the liberty of the press.
On 23 May 2011 the British Prime Minister David Cameron, commented:
"It is rather unsustainable, this situation, where newspapers can't print something that clearly everybody else is talking about. But there's a difficulty here because the law is the law and the judges must interpret what the law is. What I've said in the past is, the danger is that judgements are effectively writing a new law which is what Parliament is meant to do. So I think the government, Parliament, has got to take some time out, have a proper look at this, have a think about what we can do, but I'm not sure there is going to be a simple answer."
The same day British MP John Hemming (pictured above) disclosed in Parliament that the person involved was Ryan Griggs. The restraint on reporting had acted as a log jam in a river, with more and more information and pressure built up in the media files. Once Girggs' name was released, the logjam broke. The flood of information was both huge and critical, a super Streisand effect after the superinjunction was no longer alive.
More and more information was released. The wife of Giggs' brother Rhodri, a woman by the name of Natasha, said that she had been having an affair with Ryan for eight years and that she was revealing this because she had been shocked to find out that Ryan had been cheating on her with Imogen Thomas. She also later revealed that she had had a secret abortion when she had conceived with Ryan Giggs. Rhodri then dumped Natasha. The publicist for Imogen Thomas, Max Clifford, declared that Imogen was heartbroken to find out that Ryan had cheated on her with his brother's wife, adding that the superinjunction was "the worst own goal of his life." There is speculation that the intent of the superinjunction was to stop Imogen Thomas and Natasha Giggs from finding out about each other.
Left: Ryan Giggs with wife, Stacey.
Centre: Imogen Thomas
Right: Natsha Giggs
MP John Hemming was criticised by a number of persons, parliamentarians included, for abusing parliamentary privilege and for conducting himself above the law. He responded that the identity of the footballer was already known outside Parliament and was in the public domain. He commented that he would not have been in contempt if he had made the same statements outside Parliament and that, furthermore, he was prompted by the fact that Giggs’ lawyers had obtained a High Court order asking Twitter to reveal details of users who had revealed his identity after thousands named him. It appeared that the attack dog lawyers were going after those Twitterers.
A variation on the superinjunction is what has come to be called “the hyperinjunction”, a superinjunction that includes an order that the injunction must not be discussed with members of Parliament, journalists or lawyers. One such hyperinjunction was obtained at the UK’s High Court in 2006. It prevented disclosure of an allegation that paint used in water tanks on passenger ships can break down and release potentially toxic chemicals. It became public knowledge in Parliament under parliamentary privilege.
According to Niri Shan, the head of media law at the legal firm Taylor Wessing:
"I have never seen a super-injunction that bans someone from speaking to an MP. One of the fundamental rights that you have as a citizen is that you should be able to speak to your MP, particularly if it relates to matters of public concern. This is the development of privacy law through the courts as opposed to Parliament legislating on it. It is deeply concerning, and undermines freedom of speech."
The hyperinjunction was disclosed in Parliament in March 2011 by British MP John Hemming, who would 2 months later disclose Ryan Griggs’ identity. Hemmings disclosed the hyperinjunction when he learned that an individual who had suffered adverse health effects from drinking the poisoned water had received a 2 week suspended prison sentence for breaching the hyeprinjunction. What had the individual done? He or she (the gender is not known) had simply consulted a lawyer about whether the lawyer would take on the case on a no win/no fee basis.
Some more examples of the Streisand Effect, from:
In February  the Buzzfeed website published a selection of singer Beyonce's "fiercest moments" - mocking her facial expressions while performing at the Superbowl. Her publicist reportedly contacted it to ask that seven of the most "unflattering" photos be removed. Buzzfeed refused and republished exactly this selection with the headline: "The 'Unflattering' Photos Beyonce's Publicist Doesn't Want You To See". The exposure of the unflattering photos was magnified.
A few months later it was reported that lawyers for Pippa Middleton, sister of the Duchess of Cambridge, had asked for the removal of a parody Twitter feed, which offered ridiculously obvious lifestyle advice in her name, such as "Avoid getting lost by consulting with a map" and "A party isn't much fun without people attending". Its following increased.
In 2008 the Church of Scientology reportedly tried to get a video featuring film star Tom Cruise talking about his faith, designed for viewing by its followers only, removed from websites after it was leaked. The publicity meant it became shared more widely.
In 2012, Argyll and Bute Council banned nine-year-old Martha Payne from taking pictures of her school meals and posting them, along with dismissive ratings out of 10, on a blog. Her family complained and this was overturned, amid much publicity. To date the blog has had more than 10 million hits and Martha has raised more than £130,000 for charity.
You don't need to be famous to suffer from the Streisand effect. Spaniard Mario Costeja Gonzalez fought a long legal battle for the right to be forgotten. He complained that a search of his name in Google brought up newspaper articles from 16 years ago about a sale of property to recover money he owed. He enjoyed a landmark victory to establish the right to be forgotten. But it is unlikely he will ever be forgotten. As of this moment, his name conjures up hundreds of thousands of Google search results.