September 08, 2006

Corporations have begun to view blogs as a valuable tool for many purposes, including marketing products and services, building good will and brand loyalty, putting a human face on the corporation, countering negative publicity, and facilitating communications with current and potential customers. Some firms have established official corporate blogs or have formalized policies to encourage employees to set up personal blogs that can be used, in part, to promote the company. While such blogging can benefit companies, it also can result in legal liability.

The legal issues blogs raise fall into several categories. First, there are potential intellectual-property issues to consider. New blogs tend to build on the work of existing blogs or other content through linking and copying. This can create legal concerns regarding copyright infringement if not conducted within the confines of the law.

Inadvertent disclosure of company information in employee blogs can reveal trade secrets and jeopardize the protected status of that information. The disclosure of a third party's trade secrets also can expose a blogger to liability for misappropriation.

Sponsorship of blogs can expose a company to defamation claims. U.S. law provides Web site operators with a certain level of immunity for content they publish; however, companies and their employees may be held liable if they are the authors rather than the publishers of defamatory statements on their blogs. Moreover, false or misleading statements made on a corporate blog about the goods or services of a competitor may be grounds for a trade libel action.

Companies that collect personal information from a blog's visitors or posters need to contend with the rapidly evolving legal and regulatory framework regarding privacy and data protection. Such companies may have liability for failure to comply with applicable state, federal, and foreign statutes and regulations. A blogger who discloses personal information about co-workers on a company blog, or on his own blog during company time, may also open the organization and himself to common-law tort actions for invasion of privacy.

Personal (as opposed to company-sanctioned) blogging by employees, whether from home or the office, creates some thorny employment-law issues. For blogs that are company sponsored or originate in the workplace, employers might be held vicariously liable on a theory that they failed to exercise control or implicitly endorsed the objectionable content by allowing the blogging.

Blogging also can lead to potential securities concerns. In the related area of Web-based bulletin boards, for example, the Securities and Exchange Commission has commenced actions against individuals who were alleged to have committed securities fraud by virtue of their postings. The same potential for securities-fraud claims exists with respect to blogs.

Finally, there are litigation issues to consider. Before developing a corporate blog or permitting employees to blog on their own time, companies should carefully consider the implications for discovery. In the event that litigation does arise in connection with blogs, problems can be compounded if a company has not maintained adequate archives of the blog information.

Given the potential risks and liabilities of blogging, companies should take the following steps:

• Develop and implement policies establishing the terms and conditions under which employees will be permitted to blog.
• Provide training as a component of the blogging policy.
• Appoint a corporate representative to field employee blogging questions.
• Inform employees of the consequences of violating blogging policies.
• Develop and implement a system for monitoring the company's blogs for content that violates terms of use, employee policies or applicable laws.
• Ensure that any personal information gathered via company blogs is handled in compliance with applicable privacy laws and company privacy policies.
• Develop and implement a policy for retaining and archiving corporate blog content.

Klosek is an attorney with Goodwin Procter LLP, specializing in intellectual property and privacy law. She can be reached at [email protected].

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