Blogging has been around for a number of years but is increasingly gaining publicity. What are the advantages and disadvantages of using blogs? How do you deal with an employee who has blogged unacceptably about your organisation? If your organisation wants to blog, how do you make clear to employees what is, and what is not, acceptable blogging material
'Blog' is shorthand for web log: a web site containing diary entries, hyperlinks and news. A blog is a simple way for people to create an on-line journal. The content ranges from the hyper banal to the highly politicised; whatever your personal preference, there is now something for everyone, with over a million blogs in existence.
Blogging is not of course confined to English-speaking nations. Our European and Asian offices report that blogging is a popular and headline-grabbing concept. In Italy, the use of personal blogs is widespread, but corporate blogs have yet to gain popularity and are relatively unused as a marketing tool. Up to 68,000 blogs exist in Spain, some of which are featured on newspaper websites. In both countries, it is thought that companies will soon catch on to the benefits of blogging as a PR technique.
France has approximately three million bloggers (around 5% of the population), of which 80% are under 18. In France, the blog has achieved notoriety as a political instrument. It leapt to the attention of the media following the expulsion of a number of school students who had posted pictures of their teachers, along with insulting character sketches. A local government employee was suspended as a result of policy criticisms he had posted on his website. Even Alain Juppe, the former prime minister, has recognised the attraction of the blog, using his to comment on news and current affairs.
By contrast, blogging is relatively unknown in Germany.
Employment law issues
The potential downside of blogging has recently been evidenced by a cascade of blog-related dismissals on both sides of the Atlantic. Joe Gordon was the first UK worker to be dismissed for blogging. Gordon, a Waterstones employee, used his blog as an outlet for venting his frustration about various aspects of his employment. Waterstones considered that his comments had brought the company into disrepute and terminated his employment for gross misconduct, notwithstanding the absence of any internal guidelines on blogging. In a similar vein, former Google employee, Mark Jen, used his blog to speculate about his employer's finances. The fact that the content of the blog was 'all publicly available information and (his) personal thoughts and experiences', did not prevent Google from dismissing him.
The self-titled 'Queen of the Sky', Ellen Simonetti of Delta Airlines, fell foul of her employer as a result of her online diary of a flight attendant. Simonetti used her blog to project the image of a stewardess from a bygone era, posting provocative photos of herself in her Delta uniform. Simonetti was first suspended and then dismissed. Delta pointed to the photos rather than the content of the blog as the reason for the dismissal, considering them to be inappropriate. She has since pursued a sex discrimination claim against Delta.
The legal risks
These salutary tales highlight some of the legal pitfalls that blogging poses both for the blogger and the blogger's employer. Once blogger-employees have disclosed the identity of their employers, the content of their blogs is bound to be perceived as a reflection on their organisations, albeit that in many cases, the employer may not even be aware of the blog. Moreover, the concept of vicarious liability means that liability for any defamatory comments made by the blogger-employee in the name of the employer organisation may fall on the employer.
- Discrimination: Where comments posted on a work-related blog are discriminatory in nature, for example, about fellow employees, customers or clients of the company, the blogger exposes both himself and the employer to the risk of expensive discrimination claims. UK legislation prohibits discrimination on the grounds of sex, race, disability, religion or belief, and sexual orientation. As previously highlighted in this magazine in April, age discrimination legislation will be introduced in the autumn of 2006. Given the extent and remit of the legislation, there is a real risk that intemperate or ill-judged comments could cause offence, potentially amounting to discrimination.
Where an employer is sued for the actions of a blogger employee of which it was unaware, it can only escape liability if it can show that the employee was acting outside the scope of his employment, or that it had taken all reasonable steps to prevent such discrimination arising.
- Harassment: In extreme cases, employers may also find themselves facing harassment claims, where the blogger causes a fellow employee to feel that his or her dignity has been violated, or that an intimidating, hostile, humiliating, offensive or degrading working environment has arisen as a result of the blog. Claims could also be made under the Protection from Harassment Act 1997, where, for example, a blogger pursues a course of harassment against a fellow employee, or indeed a customer. Again, the employer could be vicariously liable.
- Confidentiality: For most employers, the biggest issue arising in connection with blogs (authorised or otherwise) is that of confidentiality. All employees have a common law duty of confidentiality to their employer, both during and after employment. Many are subject to express confidentiality clauses in their contracts, which prohibit the disclosure of confidential information.
If an employer has advance notice of a blog posting, it may be possible to obtain an injunction preventing the employee from disclosing the information, but often it may be too late to do so. The employer's recourse in that situation will be disciplinary proceedings against the employee for breaching the terms of their contract.
- Data protection issues: The Data Protection Act 1998 limits the way in which personal data may be processed; for example, it requires data to be processed fairly and lawfully. Personal data is anything which identifies an individual, and can include personal e-mail addresses. If in posting submissions, bloggers include the e-mail addresses of others, they are processing data and risk falling foul of the Act. Similarly, bloggers who reveal other details about their fellow employees (for example political or religious beliefs, which constitute sensitive personal data and attract a higher level of protection), would also risk breaching the provisions of the Act.
- Bringing the company into disrepute: As highlighted by the cases above, employers who do not approve of the employee's blog for whatever reason, will look to discipline or dismiss the employee for tarnishing the employer's reputation. The employer will need to show that there is a real risk of the blog having this effect, especially if the blog is managed in the employee's spare time, and will need to follow a fair disciplinary procedure when deciding what action to take. Introducing a blogging policy will assist in clarifying acceptable blogging conduct for employees, although, as seen in the Waterstones case, absence of a policy need not prevent dismissal being considered as a sanction.
The positive side to blogging
So is the blogosphere a minefield of legal pitfalls best avoided, or could it prove a useful business tool for your company? In recent years a new strain of blogging has emerged. Companies are catching on to the benefits of blogging as a means of painting a human gloss on what had previously been perceived as a faceless corporation. Blogs are a means of connecting with the consumer in a way which has not previously been possible. They offer the opportunity of attracting new attention to products, cultivating customer relationships and, crucially, responding to criticism.
This new strain of blogging has seen individuals such as Jonathan Schwartz, president of Sun Microsystems, and Bob Lutz of General Motors publishing blogs.
Companies such as IBM have taken steps actively to promote the practice in the workplace. It permits both internal and external blogging, and positively encourages its employees to communicate, in its name, on the web, provided they adhere to the blogging rules.
What steps can you take to ensure that you are able to take advantage of the benefits of blogging while avoiding the legal difficulties? Firstly you should decide whether you are happy for individual employees to blog, or whether you intend only to have a corporate blog, managed appropriately from within the organisation. If it is felt that there are benefits to either form of blogging, the next step is to create a blogging policy.
There will be professions and organisations for which blogging will not be appropriate given the sensitive or confidential nature of their work.
There will be others for whom blogging holds no attraction. But human nature and inexorable advances in technology mean that employees will continue to blog. Employers should therefore make clear in their rules of conduct or disciplinary policy, that blogging in the company's name or with any reference to the company is not acceptable, and will expose employees to the risk of disciplinary sanctions.
- Marian Bloodworth is a senior associate and Louise Mason is an associate with Lovells, Tel: 020 7296 2000.
WHAT SHOULD BE IN A BLOGGING POLICY?
The policy should:
- identify the benefit which blogging is considered to bring to the company - stipulate who within the company is permitted to blog
- identify the topics on which blogging is permitted
- clarify any internal verification/checking systems (for example, do all blogs have to be vetted by a senior manager?)
- lay down clear rules as to content that is taboo, for example confidential company matters, trade secrets, confidential employee details etc
- provide guidelines to assist employees in ensuring that their blogging activity does not interfere with their work
- set out clearly the sanctions for failure to follow the blogging policy
- cross reference other established relevant company policies, such as disciplinary, use of internet and e-mail policies, as appropriate.