Employers Face New Issues in the Blogosphere

By: Lee Reichert and Eric Gunning

View the published article online.

Governor Owens learned last week that at least one state employee was using government computers to post partisan comments on a web log, or “blog," devoted to Colorado politics. The Governor’s quick decision to prohibit the use of government computers for blogging illustrates the seriousness of an issue that is looming on the radar screens of private companies today.

Relatively unknown just a few years ago, blogging is sweeping the nation. From a few thousand blogs a couple of years ago, the number has grown to 22 million blogs worldwide, with a new blog being created every second. With its growing influence, there is a very strong probability that one of your employees or co-workers will read a blog or post a comment on a blog during the time that you read this article. The Governor’s recent experience serves as yet another wake-up call for employers to take steps to limit their liability for their employees’ blogging activities.

Although writing a journal about one’s hobbies, interests and personal life sounds harmless, blogging presents serious legal issues for companies when employees comment about work or post blog entries while on duty. Beyond lost productivity due to on-duty employee blogging, employee-bloggers can also cause significant harm to the company’s reputation or financial status and can expose the employer to legal liability on a number of fronts.

Employers need to be wary because blogs can reveal confidential company information, such as trade secrets, or disclose pending matters that could constitute securities law violations or could trigger a duty to investigate under Sarbanes-Oxley, the act adopted in response to the recent spate of corporate scandals. Information posted on a blog can also expose businesses to employment discrimination allegations, trade libel or copyright infringement suits.

Several recent high-profile cases highlight the risks raised by employee bloggers. Apple filed a lawsuit against bloggers who received confidential information from employees discussing a yet-to-be-announced Apple product. Google felt it necessary to terminate an employee because his blog discussed the company’s financial status and detailed a drunken Google-sponsored party. Brown University fired a communications professor based on his comments concerning an “incredibly hot” student. Delta Airlines terminated a flight attendant who posted photos of herself in her Delta uniform.

To avoid being the next company disparaged over a publicly-available and interminable medium, companies need to be proactive. Businesses should develop policies explicitly addressing blogging and establish clear and unequivocal do’s and don’ts. At a minimum, such policies should prohibit blogging during working hours and provide detailed guidelines to employees who blog off-duty. In drafting these policies, companies should consult legal counsel experienced with the blogging phenomenon.

A company’s failure to act proactively could lead to serious consequences down the road. Once comments are posted, it is hard to get the horse back into the barn. To enjoin an anonymous blogger and have the posting removed, the company may have to file suit against him or her. Given an individual’s First Amendment right to speak anonymously, courts have set a very high evidentiary bar before forcing a John Doe to unveil himself. The stringent standard is codified in some states, such as California, through anti-SLAPP (Strategic Lawsuits Against Public Participation) laws, designed to protect anonymous speakers from vindictive lawsuits designed to chill speech.

If a business discovers that a slanderous blogger is an employee, the company may want to terminate or at least discipline the disloyal blogger. While companies with at-will employees generally have wide discretion in Colorado in firing individuals, this right is not unequivocal as various federal and state laws could tie the company’s hands. If the individual is a government employee, disciplinary action could constitute “state action” raising constitutional concerns.

In addition, a number of state and federal laws, including Colorado’s lawful off-duty conduct statute (which originally was designed to protect the rights of smokers from being fired), the National Labor Relations Act, Title VII of the Civil Rights Act, and whistle-blower statutes, may offer protection to employee-bloggers depending on the circumstances. Before taking any disciplinary action, an employer should consult with legal counsel to ensure any such action conforms to the contours of the law.

Despite the grave consequences of employee-blogging, most companies have not adopted a blogging-specific policy. Given the rapid growth of the blogosphere and potentially severe pitfalls associated with this activity, companies must not bury their heads in the sand hoping the new phenomenon will fade away. Rather, they need to take steps to minimize damage that could be caused by their employees.

Lee Reichert is the head of the corporate practice group at the law firm of Kamlet, Shepherd & Reichert, LLP, based in Denver. He can be reached at lreichert@ksrlaw.com or (303) 825-4200.

Eric Gunning assisted in the preparation of this article and is also available to discuss these issues. He can be reached at egunning@ksrlaw.com.