Blogging - Bliss or Bedlam - April 2008
Organisations tentatively embrace the medium whilst remaining alert to the pitfalls.
Web technology is in the process of changing the relationship between employer and employee.
Internet online diaries, or blogs, are written in their millions and the phenomenon is unlikely to wane. Employees who post blogs pose an increasing concern for businesses who, whilst slow in the early days to pick up on the medium, are now more aware of the internet environment and are considering the legal ramifications to their businesses.
In the past, employers found it easier to control their corporate image by authorizing certain officers to deliver messages to the traditional media of newspapers, radio and television. The ease and anonymity of setting up blogs and their international reach is changing the landscape.
Personal home pages In the main, the personal home pages of many blogs are of limited interest to the masses with only a relatively small number having captured the public mood. However, those bloggers who use their home pages to comment adversely about their place of work are increasingly getting into difficulties with their employers (the term ‘dooced’ refers to the loss of a job for something written on a blog).
From a legal perspective the publishing medium that an employee selects for his or her article is immaterial. Just last month two employees hit the headlines for material they had published, one of them posting to a blog, the other publishing in print. On the eve of the budget a Whiltehall blogger calling herself ‘Civil Serf’ took her blog down, leading to widespread speculation that details from her postings about the machinations of government had led to her being identified and that she may be facing disciplinary action. In the same week Venetia Thompson was dismissed by her employer Cantor Fitzgerald for an article that blew the lid on the work life of brokers with the firm. It had been published in the Spectator magazine.
Corporate blogs Having been ignored by mainstream business for some time, a number of large organisations have now seized the opportunity presented by blogs as an alternative channel for communication. High profile users of corporate blogs include McDonald’s, Time Warner, and IBM.
The internal corporate blog provides a ready tool for communication in-house amongst staff.
With the external corporate blog comes the opportunity for improved corporate branding and awareness amongst the public. Employees post material (under their own names) during the course of their employment and in their capacity as employees of the company. Blogs typically comprise commentary about specific products and services, the industry in general, and accounts of the day-to-day work lives of the employees. In this way large corporates have had a measure of success in humanizing their image. Furthermore, the instantaneous nature of blogging has allowed corporates to move rapidly to comment on breaking news stories.
The legal risks associated with blogging are set out below. Put simply, a blog that is hosted or funded by the corporate will render the corporate liable for the content of the posts. This raises practical issues including the question of supervision. Having appropriate operational policies and employment controls is absolutely crucial.
Legal risks associated with corporate blogging
Ownership of copyright The copyright in postings undertaken at work by employees belongs to the employer.
Reputation and defamation Employees with free reign to voice their opinion may inadvertently defame competitive products and services. The employer is liable for the content of material posted by employees in their capacity as employees of and on behalf of the employer.
Infringement of intellectual property Bloggers will be in breach of the intellectual property rights if they post trade marks or logos or if they copy text from other sources.
Leaking confidential information Leakage of confidential and sensitive information is of paramount concern for businesses. Employees will not necessarily understand what they can and cannot disclose and so corporations need to provide clear guidelines.
Data Protection Referring to individuals in identifiable terms may be a breach of data protection legislation.
Harassment Blogs typically use a straight-talking style. However where this becomes accusatory businesses will be ‘vicariously liable’ for the comments and for any harassment caused by employee bloggers.
Corporate blogging policy Blogs can be a commercial asset. Good blogs allow the personality of the employees to emerge in an informal setting. Whilst businesses will want to manage the legal risks, the spontaneity and thus the success of the blog will suffer from a management decision to approve every posting. A blogging policy needs to address the following:-
* guidance as to who will contribute!
* a reminder to bloggers that they act as representatives of the business
* how blogging is to be balanced with the performance of other duties
* a warning against posts that would offend others (obscene, threatening, abusive and discriminatory comments)
* forbidding posting anyone else’s content without permission
* forbid posting anything that is confidential to the company (the business will have to provide guidance)
Even where the employer has issued codes of conduct, these have generally not referred to blogging. To help limit the damage, employers should ensure their email and internet ‘acceptable use’ policy covers blogging. The question of regulating employees is less clear when the actions take place out of work hours or indeed outside of employment.
To ensure your policies are up-to-date, and for more detailed information about the legal risks referred to above, contact us on 020 7240 9450 or enquiry@sethlovis.co.uk.