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.
i. Introduction:
Some of the biggest stories involving bloggers over the past couple of
years have centered on employers dismissing employees because of the
employees blogging activities. But isn’t this a
violation?
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."
.
i. Introduction
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?