Companies need to pay attention to employee blogs

Vaughn Liebowitz leaves her 9-to-5 job at ABC Corp. (ABC), a publicly traded company, and heads home to begin her non-paying job as “Vaughn at Night”, a blog enjoying over 10,000 hits per day.
“Vaughn at Night” cover’s Liebowitz’s musings about everything from local bands, places to eat and what she likes and does not like about her job.
Blogs have come a long way since their arrival on the Internet in the mid-1990s. A web log – shortened to blog – is a series of online web postings that are generally accessible to all users for comment and dialogue.
Popular blogs are frequently updated and chronicle a particular subject, person, or idea over time. The growth of blogging software and managed blog hosting sites such as Xanga and MSN Spaces opened the market to lay users and soon heralded an explosion in the personal blog, or online diary.

Should ABC Corp. care about ‘Vaughn at Night’?
What if Vaughn were fired and she went on her “Vaughn at Night” blog and ripped ABC and disclosed confidential company information?
In a recent New York case (Bynog v. SL Green Realty Corp., 97 Fair Empl. Prac. Cas. (BNA) 709 (S.D.N.Y. 2005)), an employee was fired from a concierge position and later published statements on her blog that listed the events surrounding her termination, the wrongdoing of the company, and comments by tenants at the building where she worked.
The court rejected the former employer’s request for an injunction to stop these postings because the employer could not prove any concrete business harm, relied on a presumption against prior restraint of expression, and refused the injunction in the absence of nearly iron-proof evidence.
Absent a signed confidentiality and non-disclosure agreement with Vaughn, ABC would have to go to great lengths to stop her from creating a negative picture of the company through a private blog, despite the potential for harm.
The “Vaughn at Night” blog reaches thousands of people each day and creates discussions that would be nearly impossible to stop as users opine, speculate and disparage ABC. It would be hard for the company to counter the negative image and subsequent business harm in part because it spreads so fast and it would be hard to trace back to the “Vaughn at Night” blog.

What potential liability does ABC Corp. face?
ABC risks being held liable for the assertions and claims made by Vaughn in the Vaughn at Night blog. Many private blogs are often anonymous and hard to monitor.
But if there is general office knowledge at ABC about the “Vaughn at Night” blog, and the blog contains harassing comments that are accessible at work, ABC can be held liable if it knew of the acts and did not address the situation.
An even greater concern to ABC would be when statements by third parties are incorporated into the Vaughn at Night blog. In doing this, Vaughn may fall under the umbrella of “content created by the employee.” If so, ABC could be liable if that blog deals with company policy, commentary, or viewpoints.

What if ‘Vaughn at Night’ breaches privacy or reveals sensitive information?
For ABC, the risk of a breach of privacy comes in several forms when Vaughn blogs on her own time. Vaughn’s disclosure of a client’s confidential information, or a revelation that might affect ABC Corp’s. stock price could breach privacy or securities laws.
Even with Vaughn’s good faith belief that she is simply expressing a private view, she could be exposing ABC to liability if the information concerns a client – especially in the financial analysis/consulting industry.
Vaughn’s blog could also disclose information about research and development or new products/ideas circulating in the company. Aside from the immediate harm of leaks to competitors, ABC would face issues of proving any form of intent when filing suit against the employee.
Often the line between public and private is so thin that employees may not consciously recognize the distinction or how their innocent comments about the work of the day may affect the company.

What can ABC do to protect itself?
ABC has some options to protect itself from witting or unwitting employee bloggers. It can limit speech, pursue tortuous interference claims, investigate employee blogs, and draft and distribute a blogging policy.
Limiting speech. Some courts recognize the right of employers to limit employee speech when such speech would reasonably be considered disruptive to office productivity or the business needs of the company. See Connick v. Myers, 461 U.S. 138, 147 (U.S. 1983) (“When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.”)
Under this reasoning, an employer can explicitly limit what a worker may say or suggest on a private blog if it is likely to: (a) reach other workers and incite them; (b) reach potential clients/users and undermine the corporate message/image; or (c) interfere with the employee’s own productivity or work duties.
Another problem comes when employees use their blogs to communicate and comment on the terms and conditions of their employment to one another. This communication could be considered “concerted activity” and is protected speech under the National Labor Relations Act. Section 7 of the Act (29 U.S.C. 11(I) §401) states employees have the right “to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.”
Investigation of employee blogs. Some employers might choose to search and investigate the blogging activities of the employees. This can reveal valuable information about their views of the company, the nature of their blog, and the risks to guard against in the future.
But investigations of private blogs done on personal time can be seen as an invasion of privacy, especially if it is not interfering with work performance. An employee might even argue he was terminated not for the danger the blog did to the company, but because the company disagreed with the employee’s political/social slant.
A strong blogging policy. Perhaps the best option for employers, a strong blogging policy establishes expectations for employees who blog, explicitly limit what business matters may be discussed, create concrete and consistent consequences for violations, and generally frame responsible blogging behavior as a job expectation.
A good policy should: