In its simplest terms, the Streisand Effect is the belief that in the modern era efforts to suppress information can sometimes have the opposite effect and draw more attention to the information. This possibility now has several well documented examples of how it works and has become so well known that multiple courts have discussed it by name. See e.g. Crossfit, Inc. v. Nat’l Strength & Conditioning Ass’n, No. 14cv1191-JLS(KSC), 2018 U.S. Dist. LEXIS 120136, at *31-32 (S.D. Cal. July 18, 2018). In fact, the DC District Court once noted that the existence of this effect can create a practical dilemma for potential litigants in defamation cases or in trying to enforce a non-disparagement clause. Guttenberg v. Emery, 26 F. Supp. 3d 88, 95 (D. D.C. 2014).
The term was likely coined by Mike Masnick. See Ashley Feinberg, The Streisand Effect, Celebrating 10 Yes of Internet Pile-Ons, Gizmodo (Jan. 5, 2015).[1] In a 2005 article, Mr. Masnick discussed the fact that trying to repress information on the internet often leads to it that information being more widely distributed and referenced his own 2003 article in coining the name. The 2003 article was about Barbara Streisand’s efforts to suppress pictures of her house.[2]
Ms. Streisand sued Mr. Kennet Adelman who was one of the operators of www.californiacoastline.org among others in Case Number SC 077 257. The case was reported on by several news sources, including Techdirt. Ultimately, the case was dismissed under California’s anti-SLAPP law which is in California’s Code of Civil Procedura Section 425.16. By the time it was dismissed, the news reports regarding the lawsuit had caused the picture, which otherwise would have likely remained obscure, to become well known.
Since then, there have been numerous examples of attempts to suppress information has led to it becoming widely known. One current high profile example is Ms. Mary Trump’s book “Too Much and Never Enough”. Mr. Robert Trump sued to block release of the book arguing that it violated a confidentiality agreement. A judge ordered that it could be released and then proceeded to sell approximtely 950,000 copies on its first official day of sales. Oliver Darcy, Mary Trump’s Book Breaks Record with Mammoth Sales, CNN (July 17, 2020).[3] It is of course impossible to know how well it would have sold without the lawsuit, but the coverage of the lawsuit provided it abundant publicity it would not have received otherwise.
Another prominent recent example is when Represenative Devin Nunes sued the anonymous person beyond the parody twitter account @DevnCow. Before Represenative Nunes filed the lawsuit, the account had less than 2,000 follows. Within days after the pres began reporting on the matter, the account had more than 454,000 thousand followers. Christal Hayes, Devin Nunes Sued a Twitter Account Dedicated to a Cow, USA Today (Mar. 20, 2019).[4]
The Streisand Effect has also affected businesses. Casey Movers threatened a Yelp Reviewer over a negative review. Mike Masnick, Latest Company to Discover the Streisand Effect: Casey Movers, Techdirt (Nov. 15, 2012). The reviewers husband wrote a blog post about the legal threat. The blog post garnered attention and was discussed by other bloggers and the press. The process wound up drawing significantly more attention to the original review than it likely would have received otherwise.
Lawsuits for defamation and related causes of action such as breach of a non-disparagement clause can serve valid purposes in modern society. However, when the primary aim of the lawsuit is to remove or suppress information, the lawsuit runs the risk of drawing more attention to the matter.
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[1] Mr. John Gilmore made a similar, though perhaps somewhat weaker statement, earlier saying “The Net interprets censorship as damage and routes around it”.
[2] Photograph Copyright (C) 2002 Kenneth & Gabrielle Adelman, California Coastal. Image supplied by Wikimedia and used her under the fair use doctrine.
[3] See also Oliver Darcy, Mary Trump Free to Promote Her Tell-all Book after Judge Lifts Temporary Restraining Order, CNN (July 13, 2020).
[4] For disclosure, I should mention that I follow @DevinCow. I first learned of @DevinCow because the lawsuit by Rep. Nunes was covered by TechDirt.