What do Barbra Streisand and Sir Bob Jones have in common? It’s all about the Streisand effect.
When lawyers read news like Sir Bob Jones threatening defamation proceedings because a tweet called him a racist we feel a strange mix of emotions.
It’s 1/3 schadenfreude watching what’s destined to be a train wreck. Another 1/3 is relief that it’s not you having to act in what’s going to be a train wreck. And a final 1/3 is jealously that it’s not you acting in that train wreck (he’s loaded and it’s all about the principle of the thing! Think of all the billable hours that means!!).
We also like to fanaticise about what we would have said if Sir Bob had stormed into our offices demanding to sue over a tweet.
But first a bit of background so that everyone is up to speed.
Earlier in the year Sir Bob penned a particularly vile column in the NBR that suggested a ‘Gratitude Day’ instead of Waitangi Day where Māori should act as servants to Pākehā ‘out of gratitude for existing’.
That column generated a significant amount of outrage and was removed by the NBR not long after it was published online. This was followed by a now 73,000+ signature petition to Parliament calling for Sir Bob to be stripped of his knighthood. To which Sir Bob responded by issuing defamation proceedings against the petition's organiser, filmaker Renae Maihi.
Now an Associate Professor at Waikato University, Leonie Pihama, appears to have called Sir Bob a ‘racist’ on Twitter. Sir Bob’s lawyers have demanded this tweet be removed and an apology given or else. The tweet has since gone viral.
So what would key points of advice to Sir Bob be?
Well yes, you can potentially sue for defamation about stuff contained in a tweet. ‘Should you’ is a very different question.
First off suing for defamation is not always a great idea. All it tends to do is draw more attention to the statements you’re worried about and so generates more publicity. This is known as the Streisand effect – named after Barbra Streisand’s spectacularly unsuccessful attempt to stop publication of photos of her house.
This effect could be seen here with more publicity generated by the threat of litigation than the original tweet. If you stop now this will all disappear. If you keep going it will fester for as long as you feed it.
Next up is how the defence is likely to play out if this does go further. Essentially that will be an argument that the ‘racist’ label is true or that it is an honest opinion that has some factual foundation. No doubt someone will trawl through everything you have ever said, Sir Bob, looking for something that proves you are racist or that might lead one to that opinion. The risk is that this may not be so much a case of finding a ‘smoking gun’ as an entire arsenal.
This causes a couple of problems. One is that there is very real possibility that a court may actually find, based on this review of your greatest hits, that the statement is either true or that there is enough of a factual foundation for someone to honestly hold this opinion.
The second is the Streisand effect again. Win or lose this is going to involve a public re-hashing of every ‘mean, malicious, and infantile’ thing you have ever said, Sir Bob. The media will love it.
Will that be entertaining? Undoubtedly!
Helpful to your reputation? Probably not.
So where does that leave things? Best case, but most unlikely, scenario is that you win after months of allegations that you are a racist replaying through the media. Worst case, and much more likely, is that after months of media hype you end up with a court judgment that says the statement that you are racist is true or not far off.
So the threatened ‘or else’ here doesn’t really seem to be much of a win either way does it? Shouldn’t this be something to just let this go now, and also to just ignore when it happens in the future?
On a more serious note though – while thinking about how you would advise Sir Bob is lots of fun the sad thing about all of this is the impact this type of nonsense, bullying threat of litigation may be having on those who have to defend it. No doubt they are a drain on limited energy, time, and money. For those interested and concerned about that, there is a givealittle page that allows you to contribute to the costs of defending the legal action here.
I hope that despite that effort those involved are still managing to get as much enjoyment from this as the rest of us are.