Introduction
As an emerging technological craze, blogging is receiving increasing
media coverage and grabbing more and more headlines. Many of
those headlines relate to blogging and business, where the stories
range from corporate employee dismissals due to blogging to the
corporations themselves utilizing blogging as new, cheap and effective
marketing tool.
Many of the legal issues related to blogging in the corporate setting
are readily apparent. For example with each highly publicized
firing of a former employee blogger you tend to ask yourself:
- Can the employer do that?
- What rights do employees have, such as freedom of speech?
- What other issues are there related to blogging & employment
law?
Other legal issues related to
blogging and business may not be apparent at first, however, these
“hidden”
issues may expose corporate clients to greater legal
liability. For example, what legal issues must be
considered when:
- Companies, such as Sun Microsystems and IBM, encourage their
employees to blogs?
- What should companies include in their corporate blogging policies?
- When company executives are the actual bloggers, how can they protect
themselves from committing SEC violations?
This section will attempt to introduce and briefly discuss the legal
issues and policy considerations related to blogging and business.
ii. Case Studies:
a) Getting “Dooced”
At 26, Heather Armstrong was working as a web designer when she was "dooced", which means to be dismissed from ones job because of blogging activities. This word actually originated from Ms. Armstrong’s website, www.dooce.com, where she blogged about family, friends, work and everything else. It was the blogging about work which got her in trouble and provided her notoriety. Her musings included calling her former boss “Her Wretchedness” and “the most insane person you have ever witnessed outside of `Dateline NBC’.” While Ms. Armstrong never mentioned the company or her co-workers by name and blogged only on her personal website off the clock, the company still chose to fire her once management was forwarded the link to her website.
b) Queen of the Sky Crash Lands
Ellen Simonetti, known on the internet as Queen of the Sky, maintained an anonymous semi-fictional account of her life in the sky on her blog “Diary of a Flight Attendant.” Like Ms. Armstrong, Ms. Simonetti didn’t disclose the name of her company. However, her downfall appears to be when she posted pictures of herself in uniform. Of those pictures, one showed her wings which could identify her as a Delta flight attendant. In all pictures Ms. Simonetti was fully dressed, however, Delta considered the pictures provocative enough to fire her.
Ironically, the airline industry in earlier decades used the flight attendant’s personal appearance, attractiveness and sex appeal as a marketing tool. If you remember, there were plenty of “stewardesses” and very few “stewards” in previous days.
c) Nanny Diaries
A couple from Brooklyn fired their nanny because of her blog. While the nanny wrote about her sexual experiences and the New York party scene, which might make most parents uncomfortable. It was actually her blogging about her work life, which happened to be the family’s actual life, in a sarcastic and cold manner that got her “dooced.” The mother who is a journalist wrote a very interesting article about this experience for the New York Times. Beyond the feeling of betrayal, the mother also became concerned when she began to discover just how frequently the nanny was blogging, when she was supposed to be watching the kids.
d) A Local Example – The Sarcastic Journalist
Rachel Mosteller worked as a reporter for the Durham Herald-Sun while maintaining her blog, The Sarcastic Journalist. Like many other bloggers, Ms. Mostelller didn’t disclose the name of herself, her company, or the city where she lived. And rather than disclosing her co-workers names, she gave them derogatory nicknames, such as “The Book Hoarder” or “Fumblenuts.” And the day after detailing how she hated her job, she was dooced.
e) The Others
1. The Success Story: Scott McNulty, who has blended technical and personal musings on his personal blog was actually given a promotion after his employer started reading his blog and gained a greater sense of his abilities.
2. Not Fashionable: Nadine Haobsh, who blogs as Jolie in NYC, was fired by Ladies Home Journal after commenting on the inner workings of the fashion industry and the work lives of her bosses. She is currently working on a novel about her short-lived career.
3. Public Information May Be Inappropriate Too: Google fired employee Mark Jen after just two weeks of employment when he discussed life at the company in unflattering terms. Mr. Jen’s employment with the search engine giant may have ended, but his blogging activities have not. . . Interestingly, Mr. Jen helped write his new employer’s blogging policy.
4. Not Fired. . .But Still Shot Down: Curt Hopkins was denied a job with Minnesota Public Radio in part, because management found some of the material contained in his blog inappropriate. Mr. Hopkins now maintains a blog that tracks employees that employees that have been dooced.
iii. Legal Issues & Analysis
The 1st Amendment protects most types of speech, including employees who blog. Considering the number of employees who have been terminated because of their blogging activities over the past couple of years, you may ask yourself… aren’t some of these firings violations of the employees 1st Amendment rights? Well the answer is almost always likely to be…NO.
The 1st Amendment was drafted to protect people from the Federal Government, not private employers. Typically what employees are posting to their websites is protected speech. However, these employees are most likely not protected from the consequences of said speech.
A large majority of states are “at will” when it comes to employment. Being “at will” allows employees to quit at any time and employers to fire employees at any time for any legitimate reason. While firing someone based on race or religion is not legitimate reason, firing someone because they do not fit into the corporate culture or have harmed the company’s corporate image are legitimate reasons. Therefore, even if the blogger doesn’t comment about work, but the employer determines the employee somehow reflect badly on it, it's within its rights to dismiss the blogger.
The general rule related to employee blogging is an “at will” employee may be dismissed for any reason (that doesn’t violate anti-discrimination laws), including the contents of his or her blog. As a result, in most cases there really is NOT a meaningful distinction between:
- Blogging at work (although this is a really bad idea unless encouraged by the employer to do so) vs. Blogging at Home (employers can invade your private life and blogging isn’t private)
- Blogging about work (“my boss is a jerk”) vs. Inappropriate Personal Blogging (“I got stoned and have had 10 affairs”)
While the general rule is sufficient to cover the vast majority of employee blogger termination cases, there are some distinctions which may need to be considered for specific instances
a) Government Employees: A government employee may have greater blogging privileges. Online speech of government employees may be considered “of public concern” and provided a measure of protection.
b) Union Employee Contracts: Certain union contracts may protect employees from dismissal for activities not related to their actual job. This exception could obviously extend to blogging.
c) Content: Certain types of communications related to labor laws, such as the National Labor Relations Act, may be protected. For example, employee communications about wages, hours or working conditions may be protected.
d) Whistle-blowing: Employees who blog in a whistle-blowing capacity may have greater protection. However, may only truly be protected after you have blown the whistle by reporting the violation to the government or to your supervisor or employer.
iv. Employees Still Wanting to Blog
For employees still wanting to blog, you have a couple of different options. One of which is to blog only about appropriate material related to your personal life and career. If your employer has a blogging policy you should read it carefully to make sure that you are in no way violating its provisions. Alternatively, if the temptation to blog about juicy details of your work or personal life are too great to resist and such blogging would likely get you into hot water with your employer…you should blog anonymously.
The following are some suggestions for blogging anonymously:
- Use a Pseudonym
- Don’t disclose identifying details about yourself, your location, the company or the industry
- Limit your audience. This may be done by requiring passwords to access your blog or alternatively you may limit search engines from including your blog in search results.
For a more detailed discussion of blogging discreetly and helpful suggestions for protecting yourself from being dooced, visit the Electronic Freedom Foundation’s Legal Guide for Bloggers.
i. Guidelines for Blogging
We suggest that companies who do not currently have a blogging policy in place should implement one. A good policy will deal with two of the major concerns of employee blogging, setting parameters for appropriate content and describing what type of company information is proprietary.
IBM and Sun Microsystems were leaders in developing blogging policies. Each company has attempted to provide a guideline that allows employees to create entertaining and creative blogs without crossing the line by revealing proprietary information or degrading the corporate image.
IBM & Sun Blogging Recommendations:
- Do not blog anonymously
- Do not market covertly
- Do not embarrass readers or the company
Interestingly, Sun used to prohibit all employees of making public statements without prior legal approval. However, the company realized the benefits associated with employee blogging and hoped to encourage this activity. After imposes the new rules for blogging, the company has more that 1,500 bloggers.
ii. Blogging Policy Recommendations
As discussed previously, it is highly recommended that companies implement blogging policies to protect its employees and itself. In drafting a blogging policy for your corporate client you may want to consider the following recommendations:
a) Do not blog anonymously: This allows corporations the ability to identify more easily a blogger posting troublesome material.
b) Statements and opinions of the employee and not the company: Employees should make clear in their entries that they are speaking on behalf of themselves and not their employers. Companies may want a disclaimer to be made available to the bloggers.
c) Do not disclose confidential company information: Companies should have an internal policy where employees can learn what type of company information is considered proprietary.
d) Respect all laws: Including copyright, fair use and securities regulations.
e) Do not name co-workers, clients or suppliers without prior consent.
f) Be creative and blog valuably: Blogs that are creative and discuss topics in a valuable manner will benefit the employee and company most.
g) Post proper content: Don't post material that is obscene, defamatory, profane or libelous.
Better Safe than Sorry: Overall corporate blogging policies should provide recommendations and guidelines that provide employees with an idea of what is appropriate. Some company policies are too vague. For example, Microsoft recommends that “employees be smart,” but this can obviously mean different things to different people.
iii. Protecting Confidential Information
Protecting company secrets may be the biggest concern regarding blogging facing corporations today. A first step in protecting confidential information is to inform company employees what information the company considers confidential. Employees who are educated on what is considered confidential and who are informed that confidential information should not be disclosed in their blog, should be less likely to disclose the information to the public.
In addition to preventing employees from disclosing confidential information, companies have begun to monitor blogging by outsiders in an attempt to protect confidential information.
Last year, Apple Computer filed a trade secrets lawsuit in California against Nicholas Ciarelli, a 19-year-old Harvard University student. Mr. Ciarelli operates www.thinksecret.com, where he publishes fairly accurate reports of new technology. In this case, Mr. Ciarelli was actually reporting about the technology before it had been released to the public. Apple’s complaint states that Mr. Ciarelli must have received his information from internal sources and as such he has disclosed Apple's trade secrets. Mr. Ciarelli is defending himself as a journalist, stating that he uses the same investigative and newsgathering techniques as any other journalist. His lawyer believes that precedent is in Mr. Ciarelli’s favor, as "journalists can't be prohibited from publishing material if it's lawfully obtained."
.
While blogs started as little more than online journals, they have evolved very quickly. Corporations are now using blogs for a variety of reasons. Some companies use blog for quick and easy internal communication, while other companies encourage employees to blog about their work and the public. Some corporations have begun official corporate blogs, with some Chief Executive Officers blogging themselves.
A recent survey indicates that while only 7% of CEOs currently maintain a blog, over half of those polled believe that blogging is an effective way for employees to communicate with one another. While, just under half of the CEOs find blogs as effective tools for communicating with external audiences.
Numerous different corporate blogs have emerged, with notable companies such as IBM, Hewlett-Packard, Verizon and Microsoft maintaining corporate blogs. Most corporate blogs can divided into two different classifications, a public relations blog or a marketing blog.
ii. Public Relations Blogs
Many companies have started blogs as a public relations initiative after the company began to be attacked by bloggers unhappy with the company’s products, services or corporate practices. General Motors has experienced financial pressures recently and has begun communicating to public via blogs, with company executives blogging about the state of the company.
The most publicized recent example of a Fortune 500 company turning towards blogs as a public relations tool is Wal-Mart. The mega-retailer has been a favorite target for critics because of many of its corporate policies, including its competition with local mom and pops stores, its hiring practices and even constructing a store on top of a burial site in Mexico. Many of its most vocal critics have gotten their messages across on the blogosphere. Now Wal-Mart is using the same medium for its counter attack.
Earlier this month, the New York times reported on Wal-Mart’s practice of providing bloggers with exclusive stories and topics to post in Wal-Mart’s favor. The article focused on Brian Pickrell, who created a blog post condemning state legislation aimed at requiring Wal-Mart to spend more on employee health care. The controversy centered on the fact that much of what Mr. Pickrell posted was provided to him word for word by Wal-Mart’s PR firm and he failed to disclose the source of the information.
iii. Policy & Legal Analysis
Bloggers have a tendency to pride themselves on their independence and when individual bloggers don’t disclose their relationships with certain entities, they lose much of their credibility. If a company chooses to blog for public relations purposes, it seems apparent that they should blog on their own behalf. Wal-Mart providing information to individual bloggers comes off as covert company propaganda which could in fact erode rather than create company goodwill.
From a legal perspective, companies should be sure to blog truthfully. The truth will serve as a companies best defense against any claims of libel, defamation or fraud.
Safe Harbor
Companies with corporate blogs must also concern themselves with regulatory rules, such as rules set forth by the Securities and Exchange commission, that may be violated when an executive blogs about the state of the company.
A great example of this involves Sun Microsystems. Jonathon Schwartz, president of the company, is a regular blogger. During a recent blog he discussed Sun’s recent acquisition of a data storage company. When he finished with his blog, the company’s attorneys got to work. The attorneys added a safe-harbor provision. The type of disclaimer companies use when disclosing business information.
A typical safe-harbor provision associated with a blog would likely start by stating that the information contained in the blog is forward-looking and involves certain risks and uncertainties. The disclaimer following Mr. Schwartz’s blog went on for over 300 words. You can see the actual safe harbor provision here.
While a half page disclaimer seems over cautious when considering the informal nature of blogs, it is a smart and necessary precaution. “If you're the CEO of a company, and you're making statements about your company's operations and prospects, the fact that you're doing it in an informal setting isn't going to change the fact that people are going to take it as inside information," said Richard Sauer, former assistant director at the SEC and now a partner with Vinson & Elkins in Washington.
iv. Marketing Blogs
Probably the most popular reason for a corporation to start its own blog is for marketing purposes. Marketing blogs have two primary advantages over traditional advertising. First, the costs of starting and maintaining a blog are very low. Secondly, blogs remain relatively novel and seem unique when compared to regular advertising. Customers have become very good at filtering out and ignoring traditional ads. While viewers of a blog may gain valuable information from the blog without even realizing that they are being sold a product.
The most interesting legal issue involved in marketing blogs is should a corporation be held liable for false or deceptive advertising? Consider the following hypothetical.
Example:
Question: A blogger makes a false statement about a competitor's product. Should this be considered false advertising?
Answer: Like most legal answers, it probably depends. Blogs live somewhere in between opinion and fact. To determine whether a blog should be treated like traditional advertising, subject to legal liability, you must consider whether the blog is a statement of fact or opinion. This determination is probably dependent on whether the blog would be considered a personal blog, an employee blog or a corporate blog.
Below are issues which should be considered in your legal analysis:
Personal Blog
- Does the company have a blogging policy?
- Does the company ask that employees to make clear the opinions/expressions are of the individual and not the company?
- Does the company ask employees to use a disclaimer?
Employee Blog
- Does the company have a blogging policy?
- Does the company ask that employees to make clear the opinions/expressions are of the individual and not the company?
- Does the company ask employees to use a disclaimer?
- How much control does the company possess over the creation/maintenance of the blog?
- How much has the corporation encouraged the creation of the blog? Is blogger considered “compensated” for his/her efforts?
Corporate Blog
- Who in the corporation is actually blogging?