Kagan McLeod

Kagan McLeod

Sometimes going to court to defend yourself creates more problems than it solves. Just ask Barbra Streisand

What is the Streisand effect? Something to do with trying to order a blintz in a strong Brooklyn accent? Singing notes that break glass? Or people who need people (the luckiest people of all)? No. As anyone in the legal profession can tell you, the Streisand effect refers to an unintended consequence of bringing legal action—when an attempt to combat bad publicity through the courts ends up producing even more unwanted attention. The Streisand effect recently claimed another victim—Dwight Brissette, former senior VP of Ledcor.

The Streisand effect gained its name from a 2003 case in which the famous singer/actor attempted to suppress an aerial photo of her Malibu home that had been published online. Following Barbra Streisand’s legal action, the photo, which had previously racked up a total of six downloads, was viewed over 420,000 times. A star was born.

Fast forward to June 2013. Brissette was among a group of Ledcor execs at the Coal Harbour Cactus Club location. A server alleged that an apparently inebriated Brissette “inappropriately touched” her and referred to her as “Kitty-Kat.” The Ledcor group was asked to leave by management, and that would likely have been the end of it. But Brissette, feeling he had been defamed, brought suit against Cactus Club, the server and her manager. In March, B.C. Supreme Court Justice Miriam Gropper dismissed Brissette’s suit, saying she believed the allegations. Coverage of the trial painted an unflattering picture of Brissette’s behaviour, and he then resigned from his VP position at Ledcor. For Brissette, it was goodbye to the way we were.

“The ‘Streisand effect’ is a real concern with respect to legal claims for defamation or breach of privacy,” says Daniel Reid, an associate at the Vancouver law firm of Harper Grey LLP. “This is particularly true when a claim relates to salacious or scandalous information, or when the plaintiff is high profile.”

Reid says he typically makes his  clients aware of the possibility that the legal action they are taking may draw additional attention to the defamatory publication. “If the purpose of the lawsuit is to suppress information, it can be particularly risky.”

Media are always looking for juicy material, he explains. “On a number of occasions, I have commenced court proceedings only to see the fact of the proceeding reported the same day.”

But Reid believes the Streisand effect should not frighten off victims of defamation. There are many cases in which legal action is ultimately necessary, such as when false and defamatory statements are being continually published, where the allegations are extremely damaging or where the information is extremely private, he says. In other cases, the plaintiff is facing a campaign of online harassment, and the only remedy is to seek an injunction.

Of course, the Streisand effect cannot kick in if no one knows you’re Barbra Streisand. “In extreme cases, courts in Canada have allowed parties to proceed anonymously or have otherwise restricted publication to address this effect,” Reid says. “An example that frequently comes up in my practice is when a jilted-ex posts sexually explicit photos or explicit false allegations online.”

Anonymity is not an option for Mr. Brissette. His lawyer, Roger McConchie,
insists his client will keep fighting. “This case did not involve a real trial [as it was a summary trial in which evidence is given by affidavit rather than in person]. Mr. Brissette seeks a real trial with witnesses giving their testimony from the witness box. Cross-examination of a witness is extremely important to a judicial search for the truth, particularly in a ‘she said, he said’ case such as this.”

As Barbra herself might tell us, the clash between privacy rights and a free society is ageless and evergreen.

“Freedom of speech, freedom of the press and open courts are fundamental principles on which our society is founded,” Reid says. “But a person’s reputation and their privacy interests are fundamental to their self-worth, their identity. Balancing these interests is a challenge for the courts. There are no easy answers when these principles come into conflict.”