Attacking cybersmearers might not get what you expect. Consider what happened to entertainer Barbra Streisand a few years ago when she tried to suppress the distribution of photos of her Malibu home. Streisand’s efforts generated an avalanche of negative publicity and more attention than she wanted. This phenomenon – in which attempts to censor or conceal information end up drawing more attention to the information, usually facilitated by the Internet – has since been coined the “Streisand Effect.”
Without a doubt, many legal claims against online critics are weak or subject to significant legal hurdles. Suing can have counterproductive results. Dangers include: generating web traffic to little-noticed sites; creating “David versus Goliath” scenarios; drawing countersuits; or exposing yourself to legal fees under “Anti-SLAPP” laws (A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.) Not to mention, you embolden critics and fuel fires that might otherwise have extinguished.
A classic “basement blogger” had criticized the Maine Office of Tourism on his blog, which had modest traffic at the time. The agency sued him on some questionable claims, using taxpayer dollars. The web community rallied to his defense, he obtained pro bono counsel from my firm, the story went viral, and traffic on his blog skyrocketed. The result: the case was quickly dropped, and he ended up with a job running Internet campaign efforts for a U.S. Senator. The tourism agency officials resigned. You don’t want any of this to happen to you. Some proven guidelines:
- Examine the Web Forums’ Terms of Service: Many sites prohibit attacks or defamatory postings and will remove disparaging content. Exhaust these remedies first.
- Separate fact from fiction and opinion: Objectively analyze whether attacks have any basis in truth or good-faith complaints. The First Amendment protects opinions and exaggerations. Only nonfactual statements support legal claims.
- Consult legal and public relations counsel: While you might have valid claims, you could face major risks making them. Attorneys and PR professionals should review all communications surrounding attacks. Your comments will be posted online and used against you.
- Flood the web with positive content: “Drown out” gripe sites with help from SEO/SEM specialists.
- Protect your IP rights with registrations: Web hosts may take down gripe site content if protected by copyright or trade secrets laws.
- Know your enemy: Attackers might have ties to or receive funding from your competitors. If so, you might have valid legal claims against those competitors. Cyber-sleuth investigators can help.
- Threaten or intimidate: This can embolden attackers and generate public support for them.
- Sue Web Hosts/Websites: Only authors are generally liable. Most intermediaries are immune from liability for hosting or posting another’s content.
- Have Employees or Friends Pose as Consumers: If exposed, you’ll look deceptive and further damage your reputation.
- File Suit to Silence: Many states have “Anti-SLAPP” laws that allow critics to win these cases and force companies to pay all attorneys’ fees. Suing should be a last resort when claims have a strong legal basis.
An attorney with Greenberg Traurig’s Orlando, FL office, Gregory Herbert has litigated and counseled clients in the areas of intellectual property law, media/First Amendment law, Internet law, eCommerce, entertainment law and complex commercial litigation.