Caution: Are Your Employees Blogging?
September 22, 2006California Litigation Report
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Many employers have yet to recognize the potential harm to their companies that may result from employees who blog. Taking steps to protect against harmful blogging, however, is an increasingly essential part of running a business. A blog, which is short for weblog, is a personalized online digest where a user can share his or her thoughts and opinions, Internet links, news stories, a message board, and diary entries with a potential audience of millions of people who surf the Internet.1
With the expansion of the Internet, blogging has increased exponentially. Over 41 million blogs currently exist on the Internet and the "blogosphere" is doubling in size every 5 ½ months, meaning it is now over 60 times larger than it was just 3 years ago. On average, approximately 75 million blogs are created daily, about 1 new blog every second of every day, and there are about 1.2 million new blogs created each day, or about 50,000 per hour.2
Although some employers sponsor their own blogs, this article addresses private, individual blogs and some of the common legal issues they raise for employers.
Dangers Raised by Employee Blogs
- Defamation Claims. Defamation claims represent a growing threat to employers as a result of the increased popularity of employee maintained blogs. To the same extent that an employer may be liable for defamatory publications of its employees, an employer may also be liable for an employee's defamatory private blog on topics that fall within the scope of the employee's employment or within the employee's actual or apparent authority. Even if an employee's statements are outside the scope of employment, an employer may find itself named as a defendant in a defamation suit if the blogging employee is the supervisor of the defamed individual or the employee's blog references the employer. The chance that an innocent employer may be a defendant in the latter situation is increased because bloggers often blog anonymously, leaving the employer as the only readily identifiable potential source of the defamatory blog.
- Harassment Claims. An employer may also be subject to liability for sexual harassment and hostile work environment claims based on an employee's private blogging activities, if a supervisor authors inappropriate comments about an employee or if the employer had knowledge that an employee authored harassing blogs about a co-employee. For example, in Blakey v. Continental Airlines, a pilot filed a hostile work environment claim against Continental Airlines arising out of derogatory comments posted about her on a pilots' electronic bulletin board operated by a third-party service provider.3 The court held that Continental Airlines has a duty to take effective measures to stop co-employee harassment when it knows or has reason to know that such harassment is part of a pattern of harassment taking place in settings related to the workplace. The Blakey decision confirms that employer liability may extend beyond mere employer-provided blogs.
- Economic Damages to Employers. An employer's business itself may be harmed by defamatory comments on employee blogs. Employees may use blogs as a means to anonymously defame employers, supervisors, or other employees which may harm employee morale, result in a loss of good will with patrons, or damage the employer's public image. In the late 1990s, for example, Southern Pacific Funding Corporation filed for bankruptcy after its stock prices fell from a high of $17 to $1 – a spiral triggered by blog postings claiming that company executives were covering up multi-million dollar embezzlement, exaggerating economic forecasts and putting the company up for sale.4
- Disclosure of Confidential Information. Blogging activities may also result in the unauthorized release of company information and data into the public domain. Whether published by a disgruntled employee or a loyal yet naïve worker, a blog that discusses an employer's confidential, business or financial information may have far-reaching and harmful consequences for the employer, such as the dissemination of trade secrets. Similarly, the unwanted release of business or financial information may result in securities law violations, such as unlawful release of inappropriate information in advance of an initial public offering.5
Learning the Identity of Anonymous Bloggers
The rapid rise in anonymous anti-employer Internet blogs has made it difficult for employers to protect themselves against defamation, disparagement in the business community and disclosure of confidential and proprietary information by employees. The first step in redressing the problems caused by anonymous bloggers is to identify who is responsible. The most widely used mechanism for identifying a rogue blogger involves the filing of a "Doe" lawsuit, in which no named defendant is identified and then serving a subpoena on the Internet Service Provider ("ISP") hosting the blog – seeking documents designed to learn the blogger's identity. Once the blogger's identity is disclosed, the plaintiff can amend the pleadings or, if necessary, re-file the suit in a jurisdiction where the blogger is subject to service of process.6
The Digital Millennium Copyright Act (DMCA) is another tool, specific to the arena of copyright, whereby persons infringing copyrights via the Internet can be identified. The DMCA allows the clerk of the United States District Court to issue a subpoena to an ISP requesting disclosure of an infringing blogger's identity, without requiring the filing of a Doe lawsuit. Under the DMCA, the clerk is served with a declaration and proposed subpoena.7 The declaration must state that (1) the complaining party has a good faith belief that use of material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (2) the proposed subpoena is in proper form; and (3) the declaration is properly executed under the laws of the United States.8
Of course, like any subpoena, a subpoena designed to unearth a blogger's identity can be challenged. The most common challenges to an "identity subpoena" are based upon purported privacy and free speech rights.
Courts weigh five factors when balancing a blogger's rights against an employer's request for disclosure of the blogger's identity:
- Is the ISP subject to direct liability in the action? As ISP providers are immune from liability under the Communications Decency Act, this factor typically weighs against disclosure;9
- Is the information sought crucial to a plaintiff's case? Because the identity of an alleged bad actor is typically critical, this factor usually weighs in favor of disclosure;10
- Has the plaintiff exhausted all alternative means of obtaining the information before seeking disclosure from the ISP? In California, employers must attempt to identify employees they believe to be involved in the bad act and may even be required to question suspected employees under oath before a court will allow disclosure;11
- What is the importance of protecting the confidentiality at issue? This turns on whether the information disseminated relates to matters of great public importance; and
- Is the employer likely to succeed on the merits of the claims against the blogger?12
Disciplining Employees for Statements Made on Blogs and Forcing Employees to Remove Negative Comments
Once the identity of a blogging employee is established, an employer's next step is to determine whether to force the employee to remove negative comments from the blog and whether to discipline or fire the employee. Most states, including California, have employment at-will policies, meaning that an employer may fire an employee for any reason that is not prohibited by statute, e.g., discrimination against a protected class. Thus, an employer generally may discipline an employee for statements made on a blog or threaten to fire the employee if the negative material is not removed. There are, however, significant exceptions to this rule that may entrap an unwary employer and subject it to wrongful termination and other claims.
Under the National Labor Relations Act ("NLRA"), an employee may not be disciplined for discussing wages, hours, or other terms and conditions of employment.13 Thus, an employee may not be fired for urging other employees to complain about a particular employment practice. A blog that encourages other employees to lodge complaints or that contains an employee forum discussing certain employment policies may, therefore, be protected. The NLRA, however, does not give an employee unlimited rights. For example, an employee may not act unreasonably, such as encouraging other employees to disseminate deliberately untrue statements.14
In Konop v. Hawaiian Airlines, an airline pilot sued his employer, alleging that the airline unlawfully retaliated against him for publishing articles on his blog that were critical of airline management and labor concessions. Hawaiian Airlines contended that the employee's publications were not protected organizing activities under a statute comparable to the NLRA and that, even if protected, the employee forfeited his rights by disseminating information he knew to be false.15 In denying the airline's summary judgment motion, the court explained that there was no dispute the blog constituted protected union organizing activity and ruled that the allegedly defamatory comments were simply hyperbole or opinion - not deliberately false statements of fact. Similarly, most states protect employees' political speech. California, for example, bars employers from prohibiting employee participation in politics, controlling employee political activities, or attempting to influence or coerce employees to adopt or refrain from adopting a particular course of political action.16
An employee's blogging activity may also be protected under various whistleblower statutes, such as the Sarbanes-Oxley Act.17 Employees may even use blog content as a pretext for invoking protection under Title VII, so as to characterize any discipline for their blogging activities as unlawful discrimination. For example, in September 2005, a former Delta Airlines flight attendant filed a lawsuit for sexual discrimination after the airline fired her for displaying, on her blog site, provocative photographs of herself in a Delta Airlines uniform.
Finally, aside from the legal consequences of firing an employee for perceived improper blogging activities, a company must be conscious of the negative impact firing employees for private activities may have on employee morale and its public image. As the popularity of blogs grows, free speech advocates and employee rights groups monitor the treatment of employees who blog. Firing an employee for comments posted on a blog may bring unwanted national attention. Google, for example, recently received unwanted publicity after it terminated an employee, allegedly because he made negative comments about the company in a blog.
Hints for Employers
- Employers should add a policy to their employee handbooks or manuals that prohibits personal employee blogging during working hours.
- Employers should also add to their employee handbooks or manuals a policy that specifically addresses private blogs and chat rooms during off hours. A corporate policy regarding private blogging should include the following points:
- Employees must make it clear that views expressed in blogs are theirs alone and do not represent the views of their employer. Moreover, bloggers should make it clear that their statements are opinions and not statements of purported fact.
- Employees should be reminded of the confidentiality provisions in the employee handbook and, if applicable, any confidentiality agreements.
- Employees should be informed that, as with all communications, statements made in the confines of private blogs or chat rooms must treat the company and its employees, customers and competitors with respect.
- Certain topics that cannot be disclosed should be identified to protect trade secrets and other confidential or proprietary information.
- The benefit of adopting policies addressing private blogs is that it puts employees on notice of the standards of conduct that apply to blog postings. As such, the policies should be provided to employees at the time of hiring and intermittently re-transmitted throughout their retention. If employers learn that an employee has violated the policies, the violation can be dealt with through normal disciplinary procedures or termination.
- Before disciplining or terminating an employee-blogger, employers should consult an attorney to make certain their actions are lawful. This will avoid liability in the event that the content of an offending blog is protected under state or federal law.
Jason Brog, "Employers Wrestle with Blogosphere," National Law Journal
(April 5, 2006)2 http://www.technorati.com/weblog/2006/02/81.html 3
See Blakey v. Continental Airlines, Inc., 164 N.J. 38, 54 (2000)
Laura DiBiase, "Are Your Clients Smear-Savvy?," Am.Bankr.Inst.J. 22, 22 (Nov. 18, 1999).5 29 U.S.C. §§ 200, 228, 229, et al.6
In 2001 it was estimated that over 120 Doe suits involving bloggers had been filed in the United States. See Reder and O'Brien, "Corporate Cybersmear: Employers File John Doe Defamation Lawsuits Seeking Identity of Anonymous Employee Internet Posters
," 8 Mich. Telecomm. & Tech. L. Rev. 195, 209, n. 81 (2002).7
The Recording Industry Association of America (RIAA) made use of the DCMA subpoena procedure in connection with efforts to stop infringement of copyrighted music via peer-to-peer file sharing. However, in RIAA, Inc. v. Verizon Internet Services, Inc.
, 351 F.3d 1229 (D.C. Cir. 2003) cert. denied
125 S. Ct. 309 (2004), the DCMA's subpoena provision was held to be inapplicable where, as in that case, the ISP did not store the infringing material on its server, but merely acted as a conduit for data transferred between Internet users. Id.
See 17 U.S.C. § 512(h)(4)9
47 U.S.C. § 230; see also O'Grady v. Superior Court
, 139 Cal. App. 4th 1423, 1468-69 (2006) 10 Id.
at 1469-70.11 Id.
See Mitchell v. Superior Court
, 37 Cal. 3d 268, 279 (1984) (setting forth the five factors); O'Grady, supra.
, 139 Cal. App. 4th at 1468-80 (applying five factors and holding that disclosure of identity of employee contributors to website [O'Grady's Powerpage] improper in light of employer's [Apple Computer, Inc.] failure to exhaust other means for obtaining information).13 29 U.S.C. §§ 157, 158
See, e.g., Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 882 (9th Cir. 2002)
Cal. Labor Code §§ 1101-02.17 29 CFR §1980.102
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