Corporate Blogging: Beyond the Water Cooler
Does corporate blogging change the legal landscape?
News Story by John P. Hutchins
NOVEMBER 14, 2005
Corporate decision-makers who wonder whether blogs present new legal challenges should know that there are a number of points to think through. And there are some differences, legally speaking, between internal and external blogs. Here's a look at some of the issues.
Inside the Company
Internal blogs -- those that aren't published to anyone outside the company -- are just another form of internal electronic communication. As such, they present issues similar to those surrounding e-mail and instant messaging.
One of the most important concerns blogging raises is that, like message boards, it presents the opportunity for anonymous communication.
It's probably a good idea not to allow truly anonymous use of an internal blog. (IT professionals can configure internal blogs so that all users can be identified, at least by the company.) Anonymous speech has certain advantages for would-be whistle-blowers, but there are other ways to report things anonymously without resorting to blogs. As a general matter, the potential for anonymous speech creates an atmosphere that can encourage irresponsible behavior, such as harassment, defamation and gossip. Except where there's a clearly identifiable benefit, anonymous speech in the workplace should be avoided.
The only legal action that most companies need to take with respect to internal blogging is to review their existing electronic communications and document-retention policies to ensure that they are broad enough to cover blogging.
As a matter of good business practice, it's wise to review these policies about once a year, whether you permit blogging or not. But it's especially worth noting that any such policy is only as good as a company's willingness to consistently enforce it. Policies that are published but not enforced can cause more harm than good.
For example, if a company enforces the policy by taking adverse action against one employee but not another, it can create problems if the employee against whom adverse action is taken is in a "protected class" under federal employment laws. Delta Air Lines Inc. is facing that very allegation in a suit recently filed by a former flight attendant who blogged. This is just one example of the potential problems that can arise through inconsistent enforcement. Consistent enforcement of internal policies should always be a priority.
Beyond Company Walls
External company-sponsored blogs offer many potential advantages. But rather than jumping on the unrestricted-blogging bandwagon, it might be a better legal strategy to exercise tight control over external blogs.
Most legal problems that might arise from external blogs are similar to those associated with other forms of external communication by or about a company or its employees. Legally speaking, the type of electronic communication that is most analogous to external blogging is the Internet message board. Uncontrolled bloggers may engage in the type of conduct that occurs frequently on public message boards, such as the following:
Generally, companies try to deter these problems among employees by enforcing standards of conduct contained in electronic communications policies, codes of ethics or contractual agreements with individual employees.
Some companies, like Sun Microsystems Inc., choose to rely on policy alone and simply trust their employees to use good judgment. But employees don't always use good judgment, of course, and bad judgment is usually what gets companies sued.
Sun's policy acknowledges that it is "accepting higher risks in the interest of higher rewards." If you're not particularly interested in higher risks, you might consider allowing only a small group of people to post to the corporate blog. Only readers who might use the "comments" feature to respond to blogs would then constitute a real threat.
Thus, the issues of whether to allow comments at all, and if so, whether to screen comments prior to their posting on a company-sponsored blog, are of paramount importance. There are potential business advantages to the comment feature. But there are also hazards to be considered.
The fundamental issue to understand is anonymity. As with message boards, it's possible for employees (as well as nonemployees) to communicate on external blogs in almost complete anonymity. Courts are very deferential to the right to engage in anonymous Internet speech. Even where a blogger may have behaved badly, getting access to his identity is tough.
A company harmed by a posted comment would need to file a "John Doe" lawsuit against the anonymous blogger. And even then, most courts would allow the blogger to defend the suit anonymously until the company made a convincing argument that its claim had merit, justifying disclosure of the blogger's identity. Courts have taken that stance in many cases related to message-board postings, and in October, the Delaware Supreme Court issued the first published opinion on the rights of an anonymous blogger, reaching a similar conclusion.
The freedom that comes from Internet anonymity often breeds irresponsible behavior. Blogs are no exception. In fact, two negative behaviors that have been affecting the Internet for a decade are making the comment feature of blogs especially difficult to manage. One such behavior is spam.
Bad Blogging Behavior
Since the passage of the CAN-SPAM Act, the Federal Trade Commission has been successfully bringing actions against commercial e-mail spammers and, to some degree, curtailing their activity. As a result, commercial spammers have started a new Internet trend: using the comment feature on popular blogs to send unwanted commercial solicitations to large numbers of blog users. This practice isn't currently covered by the CAN-SPAM Act.
Another negative behavior is Internet defamation. By allowing comments, a company might unwittingly become a secondary publisher of defamatory statements. If a company makes a blog available for unrestricted posting of comments, a blogger's defamatory statement about some third party may be imputed to the company sponsoring the blog, even if the comment is quickly deleted.
Unlike Internet service providers, which enjoy immunity for their message boards under the Communications Decency Act, a company sponsoring an unrestricted external blog would likely be considered a "publisher" of any statement proven to be defamatory and, thus, potentially liable.
A screening process for comments is worth considering, but it raises both legal and nonlegal issues.
From a nonlegal perspective, blogs are increasingly popular because they encourage unfettered speech. Some argue that screening reduces the authenticity of a blog. This is a business decision, but it should be noted that constraining potentially harmful speech is a normal aspect of virtually every other form of communication.
From a legal perspective, screening comments may give rise to a duty to protect bloggers from harmful speech, imposing potential liability on the screener where none might otherwise exist. Therefore, if a company decided to initiate a screening proc-ess in connection with a company-sponsored external blog, it would be a good idea to publish a notice attempting to limit its liability in connection with the blog. Such a notice may not be fail-safe, but including it is a better option than not including it.
One other issue to consider is whether the company blog should invoke the protections afforded by the Digital Millennium Copyright Act. The DMCA generally protects a secondary publisher of copyrighted works from claims of "vicarious" or "contributory" copyright infringement, if the secondary publisher follows the DMCA's safe-harbor notice scheme. The actual terms and nuances of the DMCA notice rules are beyond the scope of this article, but it's a good idea to embed these notices in any external blog.
One thing about blogs is certain: Everyone has an opinion. The thing to remember is that blogging is just another form of corporate communication, and communication has rewards as well as risks. Before you embark on a corporate blogging adventure, communicate with your lawyers and get their opinion. They may even have a blog of their own.