Don’t reach for the lawyers....

And, as so often, it is the internet – that anarchic playground of fashion, rumour and idealism, that makes it so. Back in 2003, when Barbara Streisand sued a photographer and picture agency to have an aerial picture of her house removed from a website’s collection of Californian coastline photographs, she might not have guessed that she would be lending her name to an internet phenomenon, the ‘Streisand effect’. This is where attempts at censorship backfire, resulting in far more publicity than if the attempt had never been made. During the month that followed Streisand’s resort to the lawyers, 420,000 people visited the website concerned – far more than would have been likely ever to have found it without the publicity.

Despite the six years that have passed, in which people might have learned to think twice about such things, incidences of the Streisand effect keep on cropping up. The most recent involved a legal ‘gagging order’ imposed on the British press, which led the Guardian newspaper to report in cryptic terms on October 12:

“Today's published (House of) Commons order papers contain a question to be answered by a minister later this week. The Guardian is prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found.

“The Guardian is also forbidden from telling its readers why the paper is prevented – for the first time in memory – from reporting parliament. Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.”

Needless to say, this was like a red rag to a bull to the UK web community, who rapidly identified all the missing ingredients – especially the fact that the question to be asked in parliament concerned the allegations over the dumping of toxic waste in West Africa by the Swiss-based company, Trafigura. As a result, awareness of the possible scandal shot up – even becoming a leading ‘trend’ on social networking site, Twitter, for a time.

Another well-known example back in April involved the attempts by Barclays Bank to prevent publication (again in The Guardian) of a series of documents outlining a complex sequence of structured finance transfers which, it was alleged, bordered on tax avoidance. Before the lawyers moved in, a total of 127 people had accessed the documents. Afterwards, inevitably, the documents spread rapidly around the web, and achieved a much wider readership.

As the website ‘TechCrunch’ commented, “The lawyers never seem to get the fact that some things just aren’t that interesting until they try to force people not to talk about them.” And Alan Rusbridger, the Guardian’s editor summed it up. “The Internet is throwing sharp relief to the illogical nature of our system. Technology is way ahead of the law, and the law is limping along trying to make sense of it.”

The increasingly well-established ‘Wikileaks’ website is becoming an important pivot in the battle. It describes itself as: “a multi-jurisdictional organization to protect internal dissidents, whistleblowers, journalists and bloggers who face legal or other threats related to publishing.” Its prime focus – for the time being – is on abuses by governments, especially those in the developing world. But corporates feature there too, and risk managers need to be aware that this site, with its careful scrutiny of the authenticity of leaked documents, and its helpful guidance for the investigative journalist, is where whistle-blowers inside organisations are increasingly likely to turn.

What does one do about it? As usual, it is a question of corporate culture. The more secretive and hierarchical the culture, and the more likely it is to play fast and loose with business ethics, the more likely it is to reach for its lawyers as a first resort – and possibly suffer from the Streisand effect in consequence.

The risk management of any potentially damaging story simply has to take account of the power of the web to put facts, documents and gossip so rapidly beyond any one national jurisdiction, that to all intents and purposes attempts at the legal suppression of publication are only likely to make things worse. Embarrassing revelations are far better managed by transparency, responsiveness and honesty, than by the traditional remedy of trying to suppress them at the outset.