July 2006
Volume 2, Number 4
Table of Contents

Welcome To The Blogosphere
A Primer for Business Lawyers

By Patrick Robben

Are you in the dark as to what a "blog" is? The online encyclopedia Wikipedia (http://en.wikipedia.org) defines a "blog" as "a Web site in which journal entries (posts) are posted on a regular basis and generally displayed in reverse chronological order. The term is a shortened form of Weblog or Web log." Authoring, or maintaining a blog is called "blogging." A person engaged in these activities is called a "blogger."

For many, these terms are completely foreign. However, for a growing number of Americans, "blogs" and "blogging" are becoming a part of their regular routine. According to a June 2005 article in USA Today, an estimated 32 million Americans now read blogs. The article noted that two reported surveys have found that more than 8 million American adults have created their own blog. Millions of blogs exist in what is sometimes collectively referred to as the "blogosphere," with thousands more being created every day. These blogs allow everyday citizens to discuss politics, business, sports and hobbies, or an infinite number of other issues (including blogs devoted to legal issues, a/k/a "blawgs").

Should businesses care about blogs? The answer is a resounding "yes." The rise of the blogosphere raises new employee policy issues. It also raises broader challenges for companies faced with the ability of bloggers to anonymously assail them. At the same time, blogging creates opportunities for companies to promote their products and manage their businesses--opportunities that will increase the need for companies to obtain counsel regarding the legal implications of their use of this amazing new technology.

Many employers are just now awakening to the realization that many of their employees are bloggers. Some of these same employee-bloggers are not just discussing the politics of the day, or their favorite hobby. Some bloggers use their personal blog as a forum to discuss professional issues, including details of their job. These blogs can include discussions about the bloggers' job duties, supervisors, fellow employees, and others. Some bloggers working for larger corporate employers have used their personal blogs to vent their opinions on corporate management and strategy.

Granted, the World Wide Web is not a new medium, and employees have been able prior to the rise of blogging to post unflattering or sensitive information on the Internet for the whole world to (potentially) read. What makes blogging unique is the ease with which it enables individuals to post content on the Web. Blogging requires only the most rudimentary computer skills, and the software needed to set up a blog is freely available. If you can "surf the Web" or read e-mail, you can quickly set up a blog and begin blogging on the topic of your choosing.

The ease with which people can engage in blogging means that it can be easy for people to "engage their keyboard" before considering the consequences of what information or opinions they are posting on the Internet. This can lead to heartburn for employers when current employees or disgruntled employees begin blogging on employment-related matters.

In a growing number of high-profile cases, employers have taken action to terminate employees for what they write on their personal blogs. In a recent incident, a Delta Airlines flight attendant was fired after the company learned of the employee's blog chronicling her job. The employee, author of a blog entitled "Diary of a Flight Attendant" on the site http:// queenofsky.journalspace.com, had posted pictures of herself cavorting in her employee uniform aboard a Delta aircraft. In another example reported last year in the Washington Post, an adjunct journalism professor at Boston University was released from his job after discussing on a sports journalism blog his class and one of his "incredibly hot" students.

The growing spate of incidents in which employers have discovered to their dismay that employees are writing potentially unflattering items has led some employers to begin to consider whether they need to formulate blogging policies for their employees. IBM, which has encouraged its employees to be active in the blogosphere, has reportedly recently issued written blogging policies to employees, and other employers have issued formal or semi-formal guidelines to employees on acceptable employee blogging.

Common features among these blogging policies include reminders for employees to: identify themselves on their blogs and disclose their connection to the company if they blog about company-related matters; make clear in posts that they speak for themselves, and not the company; preserve and maintain trade secrets and the confidentiality of sensitive information possessed by the company; and refrain from discussing customers, clients, suppliers, etc., without their prior approval. Employers that are in high-profile industries, or deal with sensitive company information, should strongly consider adopting a policy with the elements identified above.

The alternative is for the employer to give the impression to its employees that the employer condones any form of employee blogging. Such an approach increases the risk that employees will engage in inappropriate blogging behavior. It may also make it easier for an aggrieved third party to argue that an employee-blogger was acting within the scope of his or her employment, leaving the employer potentially liable for the employee's blogging.

Beyond setting forth the legal do's and don'ts, corporate blogging policies should offer employees common-sense tips on how to create an effective and nonobjectionable blog. The Sun Microsystems "Policy on Public Discourse" is a good example of such a policy that avoids legalese and offers constructive suggestions. Employee-bloggers are not only advised in plain language of some of the potential legal pitfalls, but reminded to "Write What You Know," "Be Interesting" and generate goodwill with other bloggers by providing links to noteworthy blogs.

Many novice bloggers do not appreciate the potential reach or impact of their typed words in cyberspace. Hence, a brief tutorial on blogging etiquette and issues to avoid may help steer employees out of trouble. In this way, problems can be avoided before they become a human resources and legal headache.

The rise of employee-blogging means that business counsel not only should be helping clients draft blogging policies where appropriate, but will be faced with offering counsel to clients that learn of employees failing to comply with the guidelines for safe blogging summarized in policies such as Sun's. Although private-sector employers generally have broad discretion to discipline or terminate at-will employees, employers should give careful consideration to how issues arising from employee-blogging are addressed. While the legal principles as to how much protection courts will provide employee-bloggers are still being developed, at least a couple of areas in which such activity may be deemed protected are already apparent. Paul S. Gutman, " Say What?: Blogging and Employment Law in Conflict," 27 Colum. J.L. & Arts 145 (Fall 2003).

First, employees who turn to their blog to "blow the whistle" on a suspected violation of the law by the employer may claim to be entitled under the circumstances to protection from retaliation under existing whistleblowing laws. This argument may not have *47 much merit, depending on the language of a given state's whistleblowing laws. Still, employers should be aware of such laws and consider whether they are applicable before a decision is made to discipline an employee blogger claiming to "blow the whistle" on illegal activities in the workplace.

Second, an employee turning to a blog to discuss union-related matters may also be entitled to protection. The U.S. Court of Appeals for the Ninth Circuit held in the case of Konop v. Hawaiian Airlines, 302 F.3d 868 (9 th Cir. 2002), that an airline may have violated the Railway Labor Act when the airline disclosed to one of two labor factions engaged in an internal union debate information it illicitly obtained from a pilot's password-controlled Web site.

The Web site was devoted to discussing union issues and advocating an opposing labor faction. The pilot complained that this action interfered with protected union activities and constituted unlawful coercion and intimidation. The Konop case is a good reminder to employers that although employers generally have discretion to discipline or terminate an at-will employee for what the employee posts on a blog, special considerations must be taken into account in the labor context.

Third, some states may have legal provisions granting employees protection to engage without fear of employer reprisal for certain types of speech. For example, Cal. Labor Code §  1101 has a statute prohibiting employers from "forbidding or preventing employees from engaging or participating in politics" or "controlling or directing, or tending to control or direct the political activities of employees."

New York Labor Law §  201-d is another example of the smattering of states that have statutes protecting employees from discharge or discrimination based on the individual's political or recreational activities outside of working hours. Jonathan A. Seagal, "Off Duty Blogging: What's Work Got To Do With It?" Metropolitan Corporate Counsel 27 (Aug. 2005). Employers and their counsel will therefore be wise to be cautious and think broadly in checking state statutes that arguably may be applicable before making decisions whether to terminate an employee based on the employee's off-duty blogging activities.

The blogosphere poses further hurdles to successful litigation against bloggers--be they disgruntled employees or other corporate critics--that are posting unflattering accusations. One such hurdle that clients will need to be appraised of in this situation when they seek legal action against these blogger-critics is the fact that many blogs allow authors or commentators to post statements anonymously.

In a decision late last year, the Delaware Supreme Court was perhaps the first state supreme court faced with the issue of whether it would allow a plaintiff to compel an Internet Service Provider (ISP) to disclose the identity of someone who made anonymous political criticisms of a public figure on a blog. In its decision in Doe v. Cahill, 884 A.2d 451 (Del. 2005), the Delaware high court grappled with the issue of how easily it should permit a plaintiff to use litigation and the discovery process to unmask an anonymous critic.

Noting the important First Amendment value in anonymous free speech, the court ruled that a public-figure plaintiff had to satisfy a "summary judgment" standard before it could obtain the identify of an anonymous blogger through discovery. Unless the plaintiff could demonstrate that prima facie evidence existed that, among other factors, the statement was actually defamatory, then the blogger's identity could not be unearthed. The Cahill court's reasoning relied in part on its belief that many blog posts by disgruntled individuals will be understood to be "vehicles for the expression of opinions; by their very nature, they are not a source of facts or data on which a reasonable person would rely."

Counsel for businesses that are the subject of anonymous blogger critics should therefore help their clients understand the potential limitations of a litigation response to an unfriendly anonymous blogger. Charging into court to respond to the slightest perceived attack from such a Web site may fail in an effort to unearth the author and only serve to draw unnecessary attention to the Web site. Business counsel should help clients make a nuanced response to such Web sites.

Sometimes litigation to stop a clearly defamatory message may be required; other times the best response may be to do nothing and avoid giving the Web site unnecessary attention. Or, the company may be better off trying to counter the information attack. As the Cahill court noted, one benefit of blogs is that the same features that allows an anonymous commentator to post a derogatory comment permits another commentator to respond in the same forum.

While not everything in the blogosphere can be taken seriously, the  Cahill court's description of the blogosphere as a forum generally understood to "not [be] a source of facts or data on which a reasonable person would rely" may have painted the blogosphere with too broad a brush. Granted, many blogs are amateurish endeavors with limited readership or effect. However, certain well-read blogs can rapidly coalesce public opinion against businesses that the collective judgment of the blogosphere *48 deems are acting inappropriately.

Discourse on public issues can move very quickly on the blogosphere, as the authors of well-known and influential blogs read each other's work. Bloggers can combine their energies rapidly to build a compelling argument for or against a proposition based on their collected ability to research an issue and contribute data to support their arguments.

Blogging has demonstrated this ability to shape public opinion in the last couple of years. The ability was powerfully demonstrated during the 2004 U.S. presidential election. It was during the campaign's frenetic final weeks when a group of bloggers sharing information on their blogs helped discredit a "60 Minutes II" story by Dan Rather claiming to present documentation relating to President George W. Bush's Texas Air National Guard service. In the "60 Minutes II" example, the blogosphere very rapidly built a convincing argument that the alleged Bush National Guard documents were forgeries. The lead bloggers in this example built grass-roots pressure on the Tiffany network that quickly gained attention for their concerns in the mainstream media.

CBS ended up having to undergo a very humbling, and public, investigation into how it aired a story relying in part on documents that had authenticity questions. This is but one example of a public policy debate that has been shaped by the blogosphere. Therefore, businesses should not underestimate the potential influence that bloggers can have on their customers or public image.

"Blogstorms" or "blog swarms" define the phenomenon that occurs when a large amount of blogging discussion occurs on a given topic, such as with the "60 Minutes II" incident. These blog swarms can have a real effect on businesses when they are the punching bag of the blogosphere's collective judgment. The ability of the blogosphere to rapidly sway public opinion in this context is a power that other businesses might find themselves facing.

Influential political blogger Hugh Hewitt, dubbed by the Wall Street Journal the unofficial historian of the blogosphere, argues in his recent book, Blog: Understanding the Information Reformation That's Changing Your World (2005), that wise corporate executives will have contingency plans in place to help them address these rapid-fire public relations crises before they arise.

Hewitt also suggests that savvy executives of high-profile companies will begin to find positive uses for this new medium by posting their own blogs, and offers an example of the motivating power such an executive might have if he or she used the blog as a forum to publicly recognize on a regular basis specific employees for their contributions.

That is one example of how blogs may begin to transform business by offering convenient public forums for employers to tout their employees and products, market their services or provide a helpful forum for public discussion of industry-related topics. Corporations such as Boeing and General Motors have begun experimenting with having "blogs" sharing information from company executives on new products. The Sun Microsystems "Policy on Public Discourse" explains Sun's belief that employee blogging can be an effective tool for helping the company "do a better of job of telling the world" about Sun's products and services.

It is essential for business lawyers to learn about the "blogosphere" to check out what the buzz is about. Even if you are not a blogger or blog reader, your clients, or their employees, customers or competitors might be. The advent of the widespread use of the Internet created a new set of legal, human resources, and business issues to consider. Similarly, the continuing evolution of the Internet with the rise of the blogosphere raises new legal issues, challenges and--for the savvy employer--opportunities. Savvy employers and business counsel will stay atop the potential legal and human resources-policy issues raised by blogging while also viewing blogs as a potential resource to use rather than to fear.

One example of these issues is the extent to which business liability insurance will provide coverage to businesses either using corporate blogs or blessing employee participation in blogs relating to their jobs. Judy Greenwald, "Blog liability risks expanding, but coverage takeup limited," Business Insurance (Nov. 28, 2005). Businesses using corporate blogs or encouraging employee blogging should consult their liability insurance policies to determine whether coverage exists, or whether coverage under a separate multimedia policy is available.

Business counsel should consult their clients to find out what blogging activities the company is engaged in or contemplating. In that way, the potential libel, copyright, insurance or other issues can be headed off before the client has unwittingly risked legal liability in an effort to avoid falling behind the blogging trend.

Blogs are a phenomenon that is shaping the way politics, business and law is practiced in America. We are just beginning to understand the potential and pitfalls that this new medium is creating. If you have not done so already, I would encourage you to find out what the blogosphere is all about, and consider how it may affect you, your clients and your practice.

Robben is a partner at Rider Bennett, LLP, in Minneapolis. His e-mail is probben@riderlaw.com

Copr. (C) 2006 West, a Thomson business. No claim to orig. U.S. govt. works. This article is reprinted with permission from West, a primary sponsor of the General Practice, Solo and Small Firm Division.

This first appeared in Business Law Today, May/June, 2006

Copyright © 2006 by the American Bar Association

 

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