The Johnny Depp-Amber Heard defamation case may be over, for now, but if you want to file a suit to protect your own reputation, think twice. Here’s why.
When it comes to your personal life or your business, if your reputation for honesty or competence has been defamed by an upset customer, former employee or competitor, who wouldn’t want to tackle this situation head on? We all would, and what often comes to mind is filing a lawsuit for defamation.
Defamation has certainly been in the news lately with the multimillion-dollar lawsuit Johnny Depp brought against ex-wife Amber Heard, claiming she defamed him in an op-ed that cost him lucrative acting jobs. While the jury ultimately sided with Depp, does anyone come out of a salacious six-week trial “a winner”? Or could the airing of dirty laundry lead in a court case lead to the opposite effect?
Those are issues anyone considering a defamation suit needs to consider. In fact, two people from opposite sides of the country hoping to pursue separate, unrelated defamation suits called me recently. One was the winner of her town’s annual grilling contest. The other was the CEO of a small Midwest IT firm. Each spoke with lawyers about filing defamation suits, but both were basically told, “No, we’re not going to do this for you. It is just not in your best interest.”
It’s Called the Streisand Effect
I ran my readers’ questions by Cleveland-based attorney Daniel Powell, managing attorney with Minc LLC. His firm is recognized as one of the country’s most accomplished in helping people and companies deal with internet defamation, content removal, harassment, consumer complaint/review removal, to list a few.
Their website, Minclaw.com, offers a wealth of practical, highly useful information with YouTube videos. The material is so good, so informative, that I know of law professors who recommend it to their students.
Powell explained why experienced defamation lawyers urge caution to clients who want to immediately rush off and file suit. “Any time you are considering filing a defamation case, you must consider the possible risks of unwanted exposure the lawsuit may bring to the statements you allege to be defamatory and properly weigh those risks against the potential benefits of the lawsuit.”
Barbra Streisand’s Huff Backfired
In 2002, a photographer took more than 12,000 photos of the California coastline and placed them in an online database to document coastal erosion. Among them was one of Barbra Streisand’s bluff-top estate. Streisand sued the photographer and the companies hosting the image, claiming an invasion of privacy and asking for more than $50 million in damages.
“The filing of the case backfired spectacularly – bringing widespread attention to the image,” Minc’s website points out. “Within the first month after filing suit, the image was viewed by nearly half a million people – and in the months (and years) that followed, millions have viewed the image.
“And thus, the social and psychological phenomenon known as ‘The Streisand Effect’ was born. Not only did Streisand lose her case, but she brought unparalleled attention to the very information she was trying to suppress. Had the lawsuit never been filed, it is possible the image would still only have an audience in the single digits.”
‘I Am Not a Crook!’
Who can forget Richard Nixon’s statement, “I am not a crook!” For readers old enough to have heard him say that, in view of Watergate and other scandals, many of us thought, “Oh, yes you are!”
“And that’s the problem with a shoot-from-the-hip attitude about being too quick to file a defamation lawsuit,” Powell underscores. “You need to ask yourself if it is better to say nothing in a public setting than to expose these embarrassing issues to people who might never have heard a thing about them.”
What to Do Instead
So, let’s say that you have been defamed but do not want to incur the expense of a lawsuit or run the risk of a Streisand Effect, what can you do?
Send a Cease and Desist Letter
Sometimes a softer approach may be called for, according to Powell. “It is important to weigh all the risks against the potential benefits,” he said. “Sometimes what is called for isn’t a cease and desist letter, but a politely stated request. ‘This is hurting me and my family. Won’t you please remove these comments?’
“Trying a soft approach can work in the right situation and is often the best initial approach to take. This is why your response to defamatory statements must be carefully considered to avoid making the situation even worse.”