In posting my corporate blogging rules, I suggested that companies get some legal advice before setting employees loose in the blogosphere. As the comments to the post show, that idea rubbed some people the wrong way. I guess that, in the blogging world, it’s what passes for politically incorrect. For instance, Shel Israel, the coauthor with Robert Scoble of the blogging book Naked Conversations, writes, “For [the] record, your advice on calling in the lawyers is lame and a sure-fire to make the blogs as lame as your idea.”
That seems to me a dangerous view – an example of a desire for ideological purity getting in the way of good business sense. Last year, the San Francisco law firm Howard Rice provided a useful overview of the legal risks inherent in employee blogging:
While corporate blogs offer novel opportunities, they also present significant legal risks. Companies that anticipate these issues and plan accordingly can reap the benefits of corporate blogging while reducing the risk of litigation. Among the legal issues raised by corporate blogging are:
Defamation and Privacy Torts. Companies may be held liable if their employees post content to the corporate blog that defames or invades the privacy of third parties.
Intellectual Property Infringement. Posts that include a third party’s intellectual property, such as copyrighted material or trademarks, may expose the company to liability for infringement.
Trade Libel. False or misleading statements made on a corporate blog about the goods or services of a competitor that cause or are likely to cause the competitor harm may be grounds for a trade libel action.
Trade Secrets. Inadvertent disclosure of company trade secrets on a company blog can destroy the “secret” status of such information, rendering it ineligible for trade secret protection, and disclosure of a third party’s trade secrets could expose the company to liability for trade secret misappropriation.
Securities Fraud. Material misstatements made on a company blog could expose a publicly traded company to liability for securities fraud under Rule 10b-5.
Gun-Jumping. While a company is in registration, statements made on a company blog “hyping” the company could be deemed a prohibited offer of the company’s securities, in violation of federal securities laws.
Selective Disclosure. Disclosure of material nonpublic information on a publicly traded company’s blog could be deemed a prohibited selective disclosure under federal securities laws.
Forward-Looking Statements. Failure to include appropriate cautionary language accompanying a forward-looking statement on a reporting company’s blog could cause the statement to fall outside the statutory safe harbor for such statements.
Employment Issues. Companies that terminate employees for posting inappropriate content to corporate blogs may be sued for wrongful termination, with plaintiffs claiming that the employer authorized the posting is discriminating against them for exercising their right to organize, or is violating their free speech rights. (Similar issues arise when an employee is terminated based on the content of the employee’s personal blog, or the content of instant messages or email sent by the employee.)
User Privacy. Companies that collect personal information from individuals who visit or post comments to the blog may be required to comply with state, federal and foreign privacy regulations.
Discovery. Companies can be sanctioned in the course of discovery for failure to produce archived blog content.
Now, granted, it’s in a law firm’s interest to make companies nervous, and that’s what this list is trying to do. So take it with a grain of salt. But it seems to provide a fair overview of the various ways that corporate bloggers can get their companies into hot water – even without meaning to. Corporate blogs are corporate speech; there’s no way around that. You certainly don’t want lawyers calling the shots, but you do want to make sure you’re informed about possible risks and can establish reasonable guidelines. That’s just common sense.
Is it a shame we live in such a litigious society? Sure it is. Is it also the reality of the situation? Yes. To be perceived as “lame” is not the worst fate that can befall a company.