July 2008

Employee Blogging Policies:
Encouraging Open Dialogue Online While
Protecting Your Company from Liability

Each day, more and more people begin keeping an online journal, commonly known as a blog. The blog-tracking website Technorati.com estimates that, every day, over 175,000 new blogs are started and about 1.6 million posts are made to blogs. This means that a new blog is created every half-second! The subject matter discussed on blogs is as far ranging as the interests of the people who create them. Some who blog about their lives and experiences may wish to write about their jobs.

Although the idea of employees spending their free time in some obscure corner of cyberspace writing about the companies and individuals for whom they work may seem problematic to some employers, there is no need for panic. In most cases, employee blogs are harmless and may even provide some free publicity. Moreover, the practice of blogging may lead employees to take a more active interest in their jobs and to stay abreast of the latest information available to the online community.

Some companies create official blogs for employees seeking to discuss their experiences and insights. Some of these are accessible only from the company's intranet service, while others are open for viewing by the general public. On the other hand, some companies ban blogging about work altogether, though such bans are often viewed as oppressive by employees and are likely to be ignored as the Internet becomes one of, if not the, primary means by which many people communicate.

Still, the practice of employee blogging can lead to a number of potential legal and other issues. Due to the relative newness of the "blogosphere," many of these issues have not been thoroughly fleshed out by the courts. Therefore, many employers choose to adopt a written blogging policy that allows employees to speak freely on the Internet while informing them of the precautions they should take to prevent liability or other adverse consequences for both the employee and the employer. Such policies may also protect a company from lawsuits in case it has to discipline an employee for an inappropriate blog post by demonstrating that the company was acting in accordance with an established policy that applies equally to all employees. The following are just a few of the areas that an employer may wish to address in a written blogging policy.

One of the primary concerns that has arisen from employee blogs involves bloggers who post anonymously about issues related to their jobs. These bloggers may create the false perception that they are objective experts with no personal stake in the matters about which they blog.

Anonymity may also lead bloggers to exaggerate facts because they are less concerned with reputational damage arising from misleading posts. This is particularly problematic when the blogger comments on the perceived superiority of his or her company's products or services to those of a competitor. For example, a major communications company was recently sued because of allegedly defamatory anonymous postings made by an employee criticizing attorneys who had represented plaintiffs in previous suits against the company. Because of cases like this, many companies have adopted policies requiring bloggers to identify themselves and their role at the company when blogging about work-related issues.

Many companies require bloggers to use a disclaimer when blogging about company related issues stating that the views expressed on their blogs are their own and not necessarily those of their employer. Such disclaimers can be beneficial both legally and for public relations. Last year, for example, Google was criticized after an employee posted a negative review of the Michael Moore documentary "Sicko" on a Google blog and suggested that health care companies purchase ads on Google to counter the film's message. The blog, at the time, did not include a disclaimer explaining that the views expressed by the author did not necessarily reflect those of Google.

Still, employers should be reluctant to interfere with employees' rights to express their personal views, whether online or elsewhere, by imposing unnecessary burdens and formalities. Such practices are likely to offend employees who value their free speech and could potentially lead to liability under federal and state regulations restricting a private employer's ability to discipline employees for certain kinds of speech. Disclaimer requirements (and most other regulations regarding employee blogs) should be limited to work-related blog posts or posts made to company blogs that readers would likely assume reflect the views of the company.

It is up to each employer to determine under what circumstances to allow bloggers to discuss competitors, suppliers, and others who are relevant to the employer's business. Wal-Mart has a blog where its employees are encouraged to provide their opinions and criticisms of suppliers and their products (www.checkoutblog.com). But other companies without Wal-Mart's clout may wish to require that bloggers receive permission from suppliers or competitors before blogging about them. Of course, blog posts about other companies should include an identification of the author as well as a disclaimer making clear that the views of the author are not necessarily those of the company.

Employers should keep in mind that, even when an employer cannot be held liable for an employee's posts, the employee himself may still be liable and suits against the employee may lead to negative publicity for the company. Thus, blogging policies should always discourage defamatory or disparaging blog posts.

Employers may wish to remind employee bloggers that confidential information - including financial forecasts, information regarding pending litigation, and information regarding products in development - should not be disclosed on blogs. This is particularly relevant in the context of financial information, as disclosure of non-public information or misstatements that could affect investment decisions may be viewed as a violation of applicable securities laws. The media may rely on bloggers as sources for "leaked" information regarding many of these matters, and therefore many blogging policies provide employees with instruction on how to handle media inquiries.

Companies should always take care to protect their intellectual property, and blogs are no exception. For example, an employee's discussion of a product being developed by the company may affect the patentability of the product. Trade secrets may lose their secret status if discussed on employee blogs. Similarly, a blogger's generic use of terms that the company wishes to use as trademarks could reduce the trademark protection available for those terms. An outside company may also seek to hold a company liable for the actions of an employee who posts that company's trade secrets or copyrighted information.

The areas discussed above are just a sampling of those that may be included in a company's written blogging policy. Of course, each company's policy will vary based on factors including its corporate culture, the degree of publicity that the company desires, and the relevance of blogging to the type of business in which the company is involved. FVLD prepares employment policies for its clients, including Employee Handbooks and Blogging Policies.

FVLD publishes updates on legal issues and summaries of legal topics for its clients and friends. They are merely informational and do not constitute legal advice. We welcome comments or questions. If we can be of assistance, please call or write Glenn Rice 312.701.6895 grice@fvldlaw.com, Jonathan Vegosen 312.701.6860 jvegosen@fvldlaw.com, or your regular FVLD contact.