Blogs and the Workplace: Doocing and Beyond

12/14/2006

        BLOGS AND THE WORKPLACE: DOOCING AND BEYOND 

                        By Andrea M. Johnson 

                    Partner, Head of the Employment & 
                        Commercial Litigation Section 
                              Powers & Frost, L.L.P. 

  Blog 

                Dooce 
                Dooced 
                Doocings 

                        Moblogs 

                                Vlogs 

                                        Podcasting 

                                                        Blogosphere 

                                                                               Blawg

A. THE "BLOG"

Are we running to catch up or leading the pack? Doocing, moblogs, podcasting, vlogs, and the like are the real-time terms of the virally replicating publications generally described as "blogs."

What is a BLOG? Blog comes from a combined form of web and log. Typically a blog is a publication of an online diary. Blogs can be rambling day-to-day or event-to-event notes of the writer, with, perhaps, commentary by others who may visit the blog and add their two-cents worth or links along the way. Blogs can recite the daily doings of the writer, they can reflect opinions, they can give advice. In short, they can be whatever the writer or writers want the blog to be. The blog may be extremely personal and linked only to that individual or they may offer more universal opinion, relating to a subject, cause, platform, or issue. They have been used politically. A constant of blogs is that they are always changing, depending on who and what is being commented on. Because blogs seem to invite comment either from the initial writer or others who may wind their way to that blog, the blogs can be dynamic and explosive, growing and spreading without any way to stop the discussion. So, blogs are not like static message boards. They change, they morph, and they take on the perspective of the writers who are doing the blogging. Blogs seem designed in a sense to increase communication, while at the same time permitting those who participate some minor notoriety – there is at least the appearance that the world of the Internet will have access to the blog writer's pithy thoughts of the day. Blogs are easily started by anyone or any company (estimated start up time, ten minutes ), and are often linked together on the Web, where they can sit forever.

It is with the ever-expanding technical changes that blogs have exploded in the last five or so years, as have the terms to describe them. Software permits and promotes blogs. Typically we are talking about blogs that are typed into computers in the standard method. But technology has expanded blog-dom into cell phones with text messaging capabilities, or i-pods, or video technology. So "podcasting" is an audio blog, and technology now allows for podcasters to have access to radio audio feeds on demand. "Moblogs" are blogs that are based on mobile devices like telephones, and "vlogs" are video blogs. Some blogging is dependent on "IMs" or instant messages that allow "chatting" in private "chat rooms" essentially in real time on the Internet. Ims have a telephone quality, except that they are related through computer-typed bits. Blogs defined by law are "blawgs." Other terms of interest are "dooce" or "dooced" (past tense), which means to fire someone because of comments made on a personal blog. Finally, the "blogosphere" is the total universe of blogs – the collective Internet amalgam of all blog "conversations" in the world.

B. STATISTICS & GENERAL IMPACT

Some of the statistics on blogs are a little mind-boggling (or is that mind-blogging?). It is said that some 75,000 new blogs are created daily, that there are 1.2 million postings made each day on one blog or another. Estimates of the number of blogs now in existence range from 10 to 100 million, depending on the source. Of the existing blogs on the blogosphere, it is said that there are more than 8 million adults in the United States that have started these Internet dairies. Blogs are causing the Web to grow exponentially. It is a global conversation of bloggers reading each other's comments, responding back and linking from one page to the other. Blogs show what bloggers are thinking around the world, "minute by minute."

Blogs are for computers what the water cooler was for the office and what the backyard fence was for the neighborhood gossip mill. It has been called the "greatest coffeehouse on Earth." Instead of just words spoken in ethereal air, blogs are much more permanent, taking on the appearance of documentation that can be seen by all, passed from one person to the next, and linked to the world. They are, for all intents and purposes, written word, and the old saying goes, "The pen is mightier than the sword."

Comments about our neighbors, our co-workers, our bosses or our families used to be confined to oral comments traded at the grocery store or over the backyard fence, or sniped over cube walls or at the water cooler or at the coffee maker. While potentially damaging enough, those off-the-cuff oral comments change when typed and connected through the Internet. They spread faster than a San Diego County wildfire during the California Santa Ana season. Further, the permanency of the written word seems indelible. The reach of the blogged word goes much further. Anyone with a dial-up modem, it seems, can search for a blog of choice and join the chorus of online communicators. The single stroke of the "enter" button, whether done deliberately, impulsively, angrily, impassionedly, or carelessly, can send a message across millions of desks in the world. The office or neighborhood gossip mill, while powerful in its own right, does not make nearly the potential impact as the blog does.

The impact of blogs can be compared to the invention of the printing press by Johannes Gutenberg. The printing press was created in 1440, and it is said to have sparked a publishing boom and information revolution, which "led to the Protestant Reformation and Western democracy." Given the enormity and potential reach of blogs, this form of communication will undoubtedly cause other revolutions of sorts, and some of this impact was felt in the last presidential race. Mass media controlled by enormous and powerful media companies can claim Gutenberg as its father. Today, blogs, a media explosion of much larger potential impact, are controlled by individuals, not gigantic media companies, and blogs are turning the world of mass media upside down. It is now "media of the masses." See also consternations.blogspot.com/2005.02/those-crazy-blogs-and mainstreamers.html (mainstream media "can no longer pose as if it is The Guardian of Established Truth").

C. COMPANY ISSUES

The issues for employers are a double edged-sword. On the one hand, we welcome blogs as a way of fast communication and advertising. On the other, we rue blogs for the damage that they may do to our business and our employees. Realistically, at this very point in time, the worry about blogging and bloggers doing actual damage to employers may be more theoretical than real, it seems. A few high-profile cases have caught the employment world's attention certainly. But a survey released in August 2006 found that the vast majority of employees do not blog or instant message or "chat" about their companies online. Spherion Staffing surveyed some 1348 employees and found that 88 percent had not written information about their employers on any blogs. But almost half (48 percent) said that their employers had no applicable policy. Nonetheless, Spherion concluded that, as blogging becomes more popular, this kind of employee disclosure will likely become a more unavoidable issue. See Bulletin to Management, Vol. 57, No. 58, at 299 (BNA, September 19, 2006). The question will then be: Are the employers ready to prevent that predicted problem from developing? And, the follow up: Can they? Should they?

D. EMPLOYEE CAUSE FOR PAUSE?

Employees, for their part, have a number of concerns and not just related to a potential termination or "doocing." Aside from employer unhappiness with blogged musings about the "bad" boss or disclosure of sensitive business data, both of which may lead to a dooce, employees need to be concerned about whether they will get the job to begin with. Blogs have gained such popularity especially among the younger techno crowd, that there is a feeling of individual pride in having one's own blog – a small slice of personal publicity and connection to the great 'net world. In fact, some argue that a blog is critical to job placement. See "Blogs 'Essential' to a Good Career," www.boston.com/business/globe/articles/2006/04/16/blogs_essential_to_a_good_career (arguing that bloggers can "control" what employers learn about them through a blog and that blogging makes one more visible, provides better personal "branding"). Despite the allure, blogs may also be too much information and information that an employer normally would never have access to but for the publicly accessible blog. See "Bloggers Need Not Apply," http://chronicle.com/jobs/2005/07/2005070801c.htm (blog may reveal to the employer the "dank, dark depths of the blogger's tormented soul" or the "cat better off left in the bag"). It was recently estimated that 50 percent of employers now screen job candidates using some form of online technology, and seven percent plan to do so. See "Students, Beware: Employers can See Those Pothead Boasts on Facebook," June 12, 2006 article on News Blog (June 12, 2006). So, losing a job due to a blog is a possibility – but only if the blogger is lucky enough to snag the job first.

E. BLOG PROS AND CONS

Clearly businesses are reveling in blogs and trying to surf the blog wave. For example, GM's Vice Chairman Bob Lutz launched his own blog called FastLane Blog. On it, there was a flood of complaints along with suggestions, and Lutz was applauded for his balanced responses. It sparked much GM auto interest. There is also talk about businesses quietly (or not) providing "insider" company and product information to certain "private" bloggers for publication in the "independent" blogosphere – whether these private bloggers are paid is uncertain. Businesses are beginning to understand that sensing the pulse of the blogosphere may tell them a lot about their products, like about what movies to produce, and about what the world is willing to buy. While the number of companies offering their own blogs is not that large relatively speaking, the practice has caught media attention and, like all blogs, commercial blogging continues to increase. See "Corporate Blogging: Is it Worth the Hype?" //mt.corpblogsite.com/mt2/mt-tb.cgi/454.

Equally clear, businesses are recoiling at some blogs or, more specifically, some blog entries. Companies are distressed over the potential for disclosing business secrets, the potential for scathing questions being lobbed at the company, and the potential for insulting attacks on individuals. When one who writes a malicious blog is a company employee that conduct seems to raise questions about loyalty and about the First Amendment. Is a company allowed to discipline someone for "just" stating his opinion about his manager in his personal blog? Should a business look at a candidate's personal blog to determine if he or she is a "good" candidate to hire? Are there blog rules? Should there be blog rules? How should the rules be enforced?

Big issues in the world of blogs and employers are the following:

1. Can employers monitor blogs and make decisions on the basis of what is in a blog?

2. Are there privacy concerns with the review of blogs?

3. What policies should companies consider and how are they to be enforced?

Blogs can be divided into two defined categories: those of companies and those of individuals. Companies use blogs for more marketing and advertising purposes, typically. Companies may also invite employees to blog comments about the company or seek to journal events about the company. Employees may be invited to use a company blog as a way to bulletin events. For individuals, blogs may also have topical or journalistic capabilities. The infancy of blogs lies in diary-like ramblings about the blogger's life. As we are talking about a person's life, that assuredly takes in, not just talk about boasting and derision about husband, wife, kids, and family but also similar comments about work, managers, and co-workers. So, while companies may offer blogs internally to their employees, those same employees on their own may be commenting about their employers in their "private" blogs or they may be rambling on about third parties or third-party entities that they come in contact with as life goes by.
Companies then have two broad categories to consider when thinking about blogs. First, for their own company-sponsored blogs, what are the rules? Second, for our employees or other third parties should the company, can the company, take action or discipline those parties if the company deems that the blog has gone over the line or has violated a law? Does it matter if the person is doing the blogging on his own time?

What are the pros and cons of company-sponsored blogs?

On the pros side, blogs have been heralded as awesome marketing tools. Blogs are thought to foster creative thinking and allow for constructive criticism. Some companies see blogs, like email, as a way of further internal communication. To not blog or to not permit blogging, almost seems antiquated, as if to turn back the clock.

The cons include the potential of disclosure of sensitive or embarrassing information or inappropriate comments about co-workers or subordinates. Disparagement and harassment of others loom huge as potential problems. The tone and language may show the company in a bad light. So rather than promote positive image and good marketing (as the company may have hoped), the blog becomes instead a forum for negative publicity. Also, in some instances, such as law firm blogs, there may be complicated ethical issues presented by blogs. Finally, as companies become concerned with blog conduct, the prospect of monitoring and discipline seem to be necessary.

F. POTENTIAL LIABILITY

When employees blog at work, a company may have concerns about two matters. First, should an employee be blogging on non-company sites while "on the job"? Obviously, that kind of activity is likely not what the employer is looking to see from its employees – it is not an activity within the scope of the employment. The employee should not be using the company computer for this purpose and, in fact, doing so, may raise questions of liability for the company itself. Second, there are other concerns even when the employee is posting comments on the company-sponsored blog site. Here there may be concerns about what is being said as the words now have the company logo attached. Moreover, the words may have a strong ring of company "official-ness," depending on the level of job title of the person opining on the blog page – even if they are not the true statements of the company as a whole.

What are company liabilities for blog entries – even if they are posted "off the clock"? Should a company act, must it act, if an employee's postings are viewed as harmful to itself or others? Without a doubt, employees owe a duty of loyalty to employers, but is there a limit to that duty? Are there limitations to the company taking this kind of police-type action against employees or third parties? Are there privacy concerns in this type of enforcement action?

Actions that an employer may take as to employees who blog on their own free time may depend on whether the employee is "at will," or under a contract, or whether he/she works for a governmental agency.

The big legal issues in play are:

• privacy rights/torts
o monitoring of blogs
o invasion of third-party rights
• harassment of individuals
• defamation/libel claims
• intellectual property issues
• disclosure of trade secrets
• retention of data

G. LITIGATION IMPACT

While blogs are big on the Internet, there are few actual cases to date that have focused on blog issues. Almost no reported opinions yet in the employment world. This likely results because blogging is new somewhat. There is no question, however, that it is becoming a seamless part of corporate and personal life, like cell phones and email. As such, there is no question that cases will either have blog entries up front and center or, like all other form of expression, blog entries will simply be in the general background of discourse and discovery – of all litigation.

It is clear that blogs have power and will influence litigation. There are many cases out there where either the court has cited to information on particular blogs or parties have attempted to bring in blog entries as "evidentiary proof." From a litigation point of view, we need to be aware of blogs and their influence on courts, and be prepared to deal with the subjects raised through blogs, if raised as "evidence."

Aside from case opinion where blogs and blog data are generally referenced, there are some cases where blogs have been at the epicenter of the litigation. The limited landscape shows that courts are concerned about the impact of blogs.

H. DOOCINGS OF NOTE AND WHAT THEY TEACH

1. Google and Mark Jen

A new employee to Google, programmer Jen griped about Google, its health plan and free food. Google being Google, other employees easily linked to Jen's negative comments, which were quickly brought to management's apparently distraught attention. The immediate result: Jen was terminated. Fallout, however, was a negative reaction to Google, who was said to have "overreacted." Google, for its part, says that it "has lots of bloggers and just expects them to use common sense. For example, if it's something you wouldn't e-mail to a long list of strangers, don't blog it." While Jen lost a job, he became an overnight sensation and was recruited by others. He now works for Plaxo, helping to coordinate Plaxo's blogging efforts and draw up norms for blogging behavior.

2. Delta Flight Attendant Lawsuit – the "Queen of the Sky" Firing

A lawsuit currently pending is one brought on discrimination and retaliation grounds by a Delta flight attendant. Delta discovered the attendant's private blog and found that there were "inappropriate" materials on the blog and because of the commentary and pictures "dooced" the attendant. Discovered were pictures of the attendant and her buddies in Delta uniforms; the pictures were suggestive as her blouse was open exposing the attendant's bra, her skirt was hiked, and she was shown sprawled across some Delta seats. The allegation from the employee's viewpoint was that she, as a woman, was treated differently and that the airline's action comes after she had raised a discrimination complaint. She claims that male attendants also posted their pictures (in Delta uniforms) on blogs without repercussions. The employee also complains that Delta had no explicit policy related to this kind of Internet activity. And, finally, she complains that the lawsuit was merely a way to retaliate against her related to union activity.

3. Heather Armstrong
Another publicized dooce (or is it doocing?) involved Heather Armstrong, a Los Angeles resident who was terminated for writing about work colleagues (among many other personal revelations). An article by the BBC quotes Armstrong, "I was naive. I was writing these caricatures of my colleagues. I was working in a cold, dark office doing a job that had nothing to do with the product we were making. I didn't think anyone would be reading it." [Right!] But apparently her cutting remarks were read and eventually led to her job cut, an event that sparked minor fame. It is reported that more than 55,000 people a day read her blog. In a month, her site had more than 2.4 million page views. And the blog has received literary awards; it was listed as one of the top 50 sites on the 'net by Time.
4. Others
Other publicized doocings have involved a California Auto Club, Google, Microsoft, the Los Alamos National Laboratory, Friendstar (online social networking site), and Wells Fargo. See "Have a Blog, Lose Your Job?" http.money.cnn.com/2005/02/14/news/economy/blogging, at 2. The cited infractions have ranged from harassing comments, to describing management as "incompetent," to inappropriate disclosure of company data, to placing the company in a poor light.

I. VARIOUS ISSUES IN COURT TODAY

A big issue at the courthouse today involves when and under what circumstances may businesses or individuals discover the identity of anonymous bloggers who may have defamed or disparaged another.

1. Anonymous Disclosure

Cahill v. John Doe Number One, 879 A. 2d 943 (Del. 2005).

The Cahill case involves discovery of anonymous writers on a newspaper blog. The writers had allegedly defamed Cahill, a public official, in the anonymous opinion blog. The issue was the standard that would be applied to the discovery request. The Delaware trial court concluded that the standard would be one of good faith. Plaintiffs are allowed to inquire if (1) they have a "legitimate, good faith basis" upon which to bring the underlying claim; (2) the information sought is "directly and materially" related to the claims; and (3) the information is otherwise unavailable. The court followed a standard espoused in In re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. 26, 2000 WL 1210372 (Va. Cir. Ct. 2000), reversed on other grounds, 261 Va. 350, 542 S.E. 377 (Va. Ct. App. 2001). The Cahill decision rejected the more onerous standard in Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J. Super. 134, 775 A. 2d 756 (N.J. Super. Ct. App. Div. 2000). In reaching this conclusion, the Cahill court noted:

While the internet offers an accessible and vital forum for free speech, by its nature, it also presents the real danger that users might abuse the medium by rapidly spreading defamatory information through 'cyber space' to every desk top computer terminal with internet access throughout the world.

However, the trial court's decision was reversed by the Delaware Supreme Court which adopted a more stringent test, similar but not quite as rigorous as that in Dendrite. The supreme court concluded that for a discovery request to be granted, the plaintiff would have to (1) advise the anonymous Internet poster that he/she is the subject of a subpoena, by posting that notice on the same message board as the alleged defamatory message; and (2) bringing forth sufficient evidence to defeat a summary judgment motion on the underlying claim. The Delaware Supreme Court concluded that protecting anonymous speech on the Internet was due strong protection:

The internet is a unique democratizing medium unlike anything that has come before. The advent of the internet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate. . . . the internet now allows anyone with a phone line to "become a town crier with a voice that resonates father than it could from any soapbox." Through the internet, speakers can bypass mainstream media to speak directly to "an audience larger and more diverse than any the Framers could have imagined."

Doe v. Cahill, 884 A.2d 451, 455 (Del. 2005). Cf. Russo v. Ohio, 110 Ohio St. 3d 144, 852 N.E.2d 145 (Ohio 2006) (using as a comparison an assumption that right of free speech applies to Internet even though "Internet had not been invented when the Constitution of the United States was ratified") (dissenting opinion in a right to jury case interpreting a statute providing for alternative litigation process).

Cahill is not an employment case, but it shows that courts will accord protection to Internet postings, such as in a blog, and anonymous opinion postings related to political discourse may be accorded wide protection. But see Klehr Harrison Harvey Branzburg & Ellers LLP v. JPA Development, Inc., 2006 Phila. Ct. Com. Pl LEXIS 1 (Phil. Comm. Pleas Ct., Jan. 4, 2006) (defamation lawsuit by law firm against owner of two websites that contained anonymous postings). In Klehr, the court rejected the notion that special protection applied to the discovery of the writers of the blog entries and analyzed the issue only under normal discovery rules. Id. at *29. The court noted that free speech is "not absolute" and that defamatory and libelous speech "enjoys no Constitutional protection." Id. at *31. So the discovery of the posters of the alleged defamation was ordered; to not do so, the court concluded would "unreasonably" burden the plaintiff. Id. at 32.

Compare O'Grady v. The Superior Court of Santa Clara County, 139 Cal. App. 4th 1423, 44 Cal. Rptr.3d 72 (Cal. App.-6th Dist., 2006). In this case, Apple was unsuccessful in convincing a California appellate court that the names of anonymous disclosers of trade secret information should be provided. Apple contended that trade secrets related to the certain products it was producing were being disclosed on various blog sites. Apple sought to end the disclosure and wanted to find out who was behind the Internet publication. While the trial court had agreed that the blog sites should provide the information, the appellate court disagreed, largely on the basis of two statutes (federal and state), and concluding that the discovery was not proper – or at least that Apple had not made a sufficient showing justifying the disclosure.

Compare Jane Doe v. Gregory A. Firn, 2006 Conn. Super. LEXIS 2860 (Conn. Sup. Ct., Sept. 22, 2006), where the court determined that the anonymity of a minor would be preserved in a civil sexual assault case, despite the minor's voluntary publicity in a MySpace.com blog. The minor brought the negligence action against a school district and administrators in the district for the alleged sexual abuse by a basketball teacher. While the defendant argued that the circumstances of the case were published on the blog, the court found that the postings were not specific enough and that the "public cannot readily identify her as the individual involved in this matter." Id. at *14-15. When weighed against the privacy interests of the minor in the lawsuit, the court found that the minor's interests took precedence.

2. Might Internet Postings Be Used in a Criminal Prosecution?

Ohio v. Sweeney, 2006 Ohio App. LEXIS 4782 (Ohio App. 5th District, September 18, 2006) concludes that they may. The trial court had referenced the defendants Internet postings as evidence of the defendant's "likelihood to re-offend," particularly as the postings were made after the court had ordered the defendant not to have further contact with the alleged victim. Id. at *3-4. The appellate court agreed with the trial court finding that the postings were "clearly indicative of [the defendant's] inability to control his actions." Id. at *14.
3. Is There Protection for Blog Site Providers?

Some protection is provided by Section 509 of the Communications Decency Act. 47 U.S.C. § 230. See Dimeo v. Max, 433 F.Supp. 2d 523 (E.D. Pa. 2006) (rejecting claim of defamation against site creator/provider). The statute states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Id. at 528-29. The Dimeo court stated,

Congress enacted § 230 (c) (1) to advance two objectives. First, Congress wanted to promote the free exchange of information and ideas over the Internet. [And without the protection of the statute] interactive computer services would essentially have two choices: (1) employ an army of highly trained monitors to patrol (in real time) each chat room, message board, an blog to screen any message that could label defamatory, or (2) simply avoid such a massive headache and shut down these for a. Either option would profoundly chill Internet speech.

Id. at 529. Thus, the court concluded that the blog site provider was not subject to defamation prosecution, as the information blogged came from another "information content provider." Id. at 531.

4. Should Internet Postings by a Juror Constitute Juror Misconduct?

The court in New Hampshire v. Goupil, 2006 N.H. LEXIS 146 (N.H., September 28, 2006), concluded that the blog postings of a jury foreman during prosecution of the litigation did not amount to juror misconduct. This decision was reached mostly on the fact that the juror, who was chronicling his jury service and opining about the criminal justice system, did not seem to reach any other member of the jury panel; there were no responses. Id. at *9-18. The court found that the juror was still able to deliberate appropriately, that the statements were not specific to the case, and that no other juror knew about the blog --- therefore, no prejudice. Id. at 20-21.

5. Are Blog Postings Protected under NLRB Law?

The case of Endicott Interconnect Technologies, Inc. v. NLRB, 453 F.3d 532 (D.C. Cir. 2006), suggests that an employee may cross the line and lose any "concerted action" protection by the nature of the communications. Federal law protects workers when they engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. Here, the employee had made blog postings (1) accusing the company of a loss of technical expertise after a large lay off and (2) criticizing the owner's managerial abilities. 453 F.3d at 533. The employee, previously warned about his disparaging comments, was terminated when he persisted in making the negative blogged comments. When the communications are attacks on an employer, they lose NLRB protection. 453 F.3d at 535 (citing to NLRB V. Local Union No. 1229, IBEW (Jefferson Standard), 346 U.S. 464 (1953)). The employee is no longer protected under Section 7 of the NLRB law if the communication constitutes "insubordination, disobedience, or disloyalty." Id. (quotation omitted). The Endicott court concluded that the communications were not protected and that, therefore, the job termination was appropriate. Id. at 537-38.

J. ACROSS THE POND PROTECTION
While there is American support, under certain circumstances, for employers to discipline and terminate employees related to blog entries, it is interesting to note that French courts have concluded that employees are free to criticize employers over the Internet, at least as concluded in Cegid v. Alain B., Tribunal de Grande Instance de Paris, 11/8/04, as reported in BNA's Human Resource Report, July 31, 2006. The appellate court rejected defamation claims, concluding that the employees in question has a right to criticize the employer. As the court did not find that the criticism called into question "the firm's honor or reputation,"the defamation claim could not proceed – even though it called mangers "stupid idiots." The court implied that if the individuals in question had brought the claim and not the company, the defamation possibly might have fared better.
K. BACK TO EMPLOYEE/EMPLOYER REALITY IN THE USA

Employers are concerned, naturally, when there are issues of harassment in a blog, when the personal venting is about "real" people, raises issues of defamation, when the commentary suggests strong disloyalty to the employer and, in instances, subversion of company purposes, and when the company is put in a bad light through the blog. Much like email at work that may bring inappropriate materials to the workplace, personal blogs can reach back and negatively affect the company and its individuals either directly or indirectly. If the association is clear enough for others to know the link, questions about appropriateness will inevitably ensure. Aside from hurt egos, these kinds of cutting comments may, indeed, put the company at risk for liability from third parties.

What are the nature of the claims that may fall within the blogosphere:

• discrimination and retaliation lawsuits (Delta attendant)
• First Amendment concerns with a public employer
• potential union law violations [NLRA Section 7 claims]
• religious speech issues
• possibly whistle-blowing activity


1. State Law Protections of Off-Duty Activity

Further in several states (not Texas to date) there are statutes that may raise questions about an employer's ability to monitor and comment on an employee's "free time" activities. For example, in California there is a law that protects employees from "demotion, suspension, or discharge” for lawful activity during nonworking hours. Whether blogging about one's job or boss or company activities come within that protection – is not known. In several states, including Texas, employers cannot negatively react to an employee's political activity or affiliation (also in South Carolina, Puerto Rico, Pennsylvania, New York, Louisiana, Washington, D.C., California, and Washington).

2. Bad Publicity

Aside from potentially violating laws, employers also risk bad publicity in pursuing a blogger. The perception of big brother may negatively impact a business' reputation and may also chill employees, causing a discontented populace and perhaps leading to union organizing. Media interests favor freedom of expression in a blog, and there are groups like the Electronic Frontier Foundation that support bloggers sued for blogging activities. See www.eff.org/bloggers/lg/faq-overivew.php. The EFF offers not only general advice about the limitations on blogging and prohibitions on Free Speech infringement but also legal defense. Part of their principal advice is for bloggers to blog anonymously. See www. eff.org/Privacy/Anoymity/blog-anonymously.php.

3. Company Loyalty

Having said all of that, there is no question that employers can discipline or discharge any employee for any reason, including blogging – unless that action is taken in a discriminatory fashion, or done in retaliation for an employee asserting legal rights, or is in violation of another law. The basic gist is that employers do not have to employ people who demonstrate disloyalty or exhibit disdain for the hand that feeds them.

4. Why a Policy?

The issues are on multiple levels. As the blogosphere expands, so will concern about content and, employer reaction will heighten as well. If firings result, so will lawsuits likely prosper. Media interest in this issue is high. There are concerns about the First Amendment, and those make the issue one of high profile and interest. Because of the high profile of some of these issues and the risks attendant with the easy publication, the public spotlight can easily highlight employer action. Further, there may be risks not just from failing to act to a disturbing publication but from over-reacting and raising privacy and other concerns and lawsuits. These risks are not just from a legal perspective but from a business perspective. What is necessary to protect the business?

But lack of company policy and action can lead to third-party lawsuits, such as for harassment (the claim can be that the blog promoted or permitted a hostile work environment), negligent hiring (possibly based on defamation claims or the disclosure of confidential data), or possibly securities violations if pending securities activity is disclosed. In Blakely v Continental Airlines Inc., (N.J., No. a-5-99), the New Jersey Supreme Court permitted a harassment claim by a female pilot to go forward based on emailed messages of her co-workers, other pilots.

To avoid these issues, we could stop all blogging. That is extremely unlikely and likely counter-productive to business. It would be attempting to put a genie back in the bottle. So, rather than ban blogging, the better approach is to invoke a policy to appropriately protect a business. At a minimum we need to communicate what we expect and what will provide the basis for our reaction. Does a blogging policy make sense? If not, what will the company guideline be should an offensive or out of line blog be discovered?

Are there free speech restrictions to an employer taking action? As to most private employers the issue has no application. The First Amendment protects against governmental intrusions, and does not relate to private party action. So, while the Bill of Rights may be bandied about as a rallying cry, for most employers it has no application, unless the speech comes within a protected category. See www.eff.org/Privacy/Anonymity/blog-anonymously.php (offering advice about protected subjects that are protected by statute and/or the First Amendment, including political opinions, unionizing, whistleblowing, and legal off-duty activities). With the Garcetti v. Ceballos decision of the 2006 term, the Supreme Court concluded that for public employees, as for private ones, statements as a part of an employee's job do not have special protection under the First Amendment. The Court held that employees who "make statements pursuant to their official duties. . . are not speaking as citizens for First Amendment purposes and the Constitution does not insulate their communications from employer discipline." The Court rejected the idea of becoming immersed in the employer-supervisor relationship, when the employee is merely performing his job.

Regardless of private or public status, much of the murkiness that may exist in this area could be resolved through clear policy spelling out what the employer's expectations are. Bloggers tend to operate, like Ms. Armstrong, in a "no man's land" of the "quiet" Internet, where they feel that they are insulated from employer scrutiny because the blogging is done at home, is "personal" to them, and something they never conceive others (i.e., management) would ever view. Well crafted and publicized policies should awaken employees to the reality of the company expectations and Internet openness.

L. POLICY GOALS

A primary goal should be to protect trade secrets. Trade secrets are at the core of most business. Thus, protecting those secrets is likely a core value of the company. Naturally this includes formulas, analyses, techniques, manufacturing processes, and any other matter that gives the entity a competitive advantage over others in the marketplace. The difficulty may be, however, that employees do not know or realize that they are discussing matters that are secret. So, part of the problem is ensuring that employees have a good deal of what is public knowledge and what is not. While policies are geared at stopping both deliberate and careless disclosure, it is at times the careless disclosure that may be the most disheartening. Those bent on disclosure for personal gain or malicious reason will be hard to stop regardless of the policy in place.

So, ensuring that employees have a decent concept of secret company data is key, as a preliminary matter, to making sure they do not violate confidences in informal blogging. Training and instilling of this knowledge and the associated values are, therefore, critical. Otherwise accidental disclosure could come even if the employee supplies enough information to suggest the secret information to third parties. Disguises may be transparent. Employees may describe systems, including security systems, which may undermine the business efforts of protection.

The impact and spread of communication on a blog may be devastating to a "trade secret." Of course, this depends on the nature of the blog and how widespread it is. It also depends on the nature of the information and whether something may still be salvaged of the secret. However, given the nature of the Internet and the technology available, the risk exists obviously.

Outside of traditional trade secret information, there is, of course, other disclosure of data, sensitive data that may negatively impact the business or its employees. For example, payroll and compensation data and the way business is transacted (products shipped and when, for example) would certainly not be for public consumption. Knowing the shipping schedule of a new product could give a competitor an edge in business. There is a whole host of data that is used and talked about within a company that employees may have no idea is not considered for public disclosure. So, critical to protecting against gabbed blogging is providing a clear understanding to employees. Only with that understanding will confidential policies take on true meaning and have strong enforcement possibilities.

Aside from recognizing and identifying both trade secret and sensitive non-public data, companies need to train and constantly reinforce that knowledge among all level of employees. Beyond these steps of (1) recognition/identification and (2) training, companies need to have:

• clear policies related to confidential information

• clear policies related to blogging activities

• monitor company blogs

• add in confidentiality or blogging clauses in employment contracts, if used (unless general employee policies are incorporated by reference)

In addition to disclosure of sensitive data and trade secrets, the failure to set blog parameters could also lead to unflattering portrayals of the company or its managers/workers. This could happen, in fact, even by "well-intentioned" employees who believe that they are listing constructive criticism for the company's "good." Naturally, disgruntled employees can use a company's professed democratic culture and open blog as a cover to dump disparaging comments at the business and individuals.

The keys to avoid and correct such disparaging comments, as with the secret and sensitive data, are training, clear policies, and monitoring. It is a reality that with all tools and avenues of expression someone needs to be assigned the role of monitor, with a role given to correcting, in a timely, careful, and diplomatic way, incorrect and inappropriate comments. Not doing so could lead to the company opening itself to potential liability, with the inevitable accusations of knowledge coupled with an allege failure to react/correct.

There is also the concern that a lack of restriction on a company blog can lead to a dilution of company message or branding. Inconsistencies about company intent and goals may occur. Unfettered use of trademarks or other company indicia may lead to a dilution of the brand.

M. POLICY GUIDELINES

What are good guidelines for blogging policies? Factors to consider include initially: (1) evaluating the industry involved and (2) contrasting the business culture that the blog policy must exist in. In short, how friendly or not should the policy be? What does the business want to protect? Why? What are the privacy interests of the company? The confidentiality policy and privacy policy should be incorporated in any policy. What expectation of privacy, if any, should employees have if they blog? Will the company "protect" the blogger?

The construction of a blogging policy is, at heart, an education about why the company needs the policy and about what the core values of the business are. Thus, a policy should explain why it is necessary, what liability is sought be avoided. Employees should be aware of the legal ramifications to them, as well as the company. As with any policy that we wish to be effective, it should be clear in its language so that all understand its purpose and goals, and it should be something that the business can live with. Policies connote enforcement, across the board. So the business needs to be sure that it can enforce, will enforce and be content to enforce the policy as written – that it meshes with corporate culture and will not lead to inconsistent enforcement among employees.

Each business must evaluate what it can and is willing to do. Should blog entries be reviewed first? That is unlikely in most cases, though there should be an out, requiring all employees to seek advise as to any posting that they have a question about. Blogging comments outside of work may be impossible to restrict by policy. Write the policy from common sense so that employees understand the difference between personal drama and soap operas and positive work blogs. Be clear in defining what is off bounds. All Human Resource policies should be referenced and incorporated in a blogging policy, and some, such as harassment policies, should be specifically called out in the blog policy language. Incorporate a disclaimer of corporate liability.

The basics of a good policy should prohibit statements that are defamatory about the company and its employees, or link the company to negative comments about other entities or other individuals. Another parameter should proscribe lashing out at supervisors or coworkers. And, finally, another good guide will prohibit the blogger from writing about controversial subjects while at the same time identifying him or herself as a company representative. The language of the policy should talk in terms of direct connections to the employer and indirect connections, if they sufficiently link the writer and his/her employer. Companies should preserve the freedom to restrict its high-level employees from speaking or writing on controversial topics that might embarrass the company and, just by virtue of their title, link the company to that issue and remark. Moreover, the policy should, of course, cover the issue of disclosure of trade secrets and sensitive matters. Also, the policy should be broad enough to cover any kind of blog, no matter where it exists on the Internet and no matter where the employee writes on it. Naturally, the policy must be written in such a way that it will not lead the business to infringe on constitutionally or statutorily protected speech or activity (e.g., union activity, whistleblowing, or political speech). In short, the policy must provide balance between the rights of the employer and the employee.

There are several blog policies that you can access online; four examples are attached:

• Sun Microsystems

• IBM

• Feedster

• Harvard Law School