In September of 2015, Noleen Hausler secretly recorded her father, who suffers from dementia, being abused by an employee of a nursing home he lived in.
Ms Hausler had become suspicious that her father was being mistreated and placed a camera in his room to secretly record his interactions with staff.
After taking footage of the abuse to the police the employee in question was subsequently convicted of aggravated assault.
However, when the police showed the footage to the nursing home, their response was to send Ms Hausler a cease and desist letter noting that she was in breach of the Privacy Act, the Aged Care Act and the Video Surveillance Act.
It was this unsympathetic response that caused Ms Hausler to release the footage to a news organisation. The widespread media attention that followed the nursing home’s response is what has become known as the Streisand Effect.
What is the Streisand Effect?
The term ‘the Streisand Effect’ was coined by Mike Masnick of Techdirt in 2005. It takes its name from Barbra Streisand whose ill-fated attempt to have photos of her Malibu home removed from an environmental activist’s website caused the photos to be spread more widely than before proceedings had been filed.
Streisand’s lawsuit, which was ultimately dismissed, brought in more than a million visitors to the relatively obscure website.
Since this incident the Streisand Effect has claimed many victims, most commonly in cases involving defamation, breach of privacy and copyright infringements.
The unfortunate consequences that can result for copyright holders was highlighted by a 2012 decision of the High Court of the United Kingdom. In this decision the court ordered five British ISPs to block access to ‘The Pirate Bay’, a file-sharing website which allows users to illegally download content such as movies and TV shows. As a result of the High Court’s order, The Pirate Bay recorded a record amount of traffic with the number of unique visitors increasing by up to 12 million during that period.
This phenomenon creates concern for both companies and individuals, especially when navigating legal issues, about how to avoid similar fates.
How to avoid becoming a victim of the Streisand Effect?
Court proceedings ensure that the matter appears on the public record. If the matter is even vaguely controversial, it can be picked up by news outlets and disseminated widely.
When the case does not absolutely necessitate it, legal proceedings should be avoided. Instead, a more subtle, less aggressive approach should be adopted to deal with the matter at hand.
This approach can include engaging legal services to navigate the matter using alternative dispute resolution (ADR) in order to avoid publicity and the excessive costs associated with litigation.
Where does this leave you?
Nobody wants to be a victim of the Streisand Effect and sadly, trying to avoid it can feel like a catch 22.
Leaving the material in question undisturbed on the internet can feel grossly inadequate. But the Streisand Effect demonstrates that using the wrong methods to try and have the material taken down will only draw more unwanted attention.
From a pragmatic perspective, going to court to defend your copyright or privacy rights can create more problems than it solves. If the matter is something relatively trivial or just simply embarrassing, wait for it to be overshadowed by something more controversial.
However when the matter involves a serious violation of your privacy or infringement of you intellectual property rights, legal advice should be sought on how to approach the situation using ADR processes rather than pursuing aggressive and costly court proceedings.
The author wishes to acknowledge Law Clerk Mikaela Dooley for her contribution to this article.