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With the recent launches of Google’s blog search tool [FOOTNOTE 1] and inclusion of blogs in Yahoo’s news search, [FOOTNOTE 2] the mainstream Internet giants have joined technology targeted companies, such as Technorati, [FOOTNOTE 3] in providing surfers with user friendly mechanisms to locate relevant blogs. This has resulted in an explosion of blog visibility and accessibility beyond the technology cognoscenti, and many think that the “blogosphere” stands on the precipice of commercial explosion akin to what search engines did for the Web a decade ago. [FOOTNOTE 4] A blog, short for “Web log,” is a dynamic site where users can quickly post chronological, up-to-date thoughts, Web links, and responses to earlier posts. [FOOTNOTE 5] It is a simple, easy to use communication tool that is equally available to individuals or companies and organizations. Software and hosting services allow the easy creation of blogs — including text, photos, audio, video, and links to Web sites — without the need to understand the underlying technology. Posts are automatically formatted and displayed in reverse chronological order and may permit viewers to comment, track, and link to other comments and other posts. And blogs usually are updated frequently, with many having daily updates. A number of companies already encourage blogs. [FOOTNOTE 6] The introduction of readily available blog search engines should attract businesses, large and small, to make use of blogs to provide commercial information and product support, as an adjunct to conferences, to build good will, and for a host of other marketing, sales, and communication purposes with existing and prospective customers, co-workers, business partners, and the media. Of particular interest may be employee, including management-level, blogs. Some reasons that a company may encourage CEO and employee blogs are to position the company at the forefront of creativity and expertise in its market, increase “personalization” of customer interaction, provide trusted content when the company has either good or bad news to report, improve recruitment, and test new product ideas. Internal blogs may also foster internal collaboration and assist in accurate dissemination of company information and culture. [FOOTNOTE 7] Simultaneously, there is a substantial market for “blog advertisements” that are targeted to the subject of the specific blog. [FOOTNOTE 8] Thus, the cost of the blog itself can often be defrayed by offering advertisements with links to the company’s commercial Web site or for non-competitors wishing to pay for advertising space on the blog site. EMPLOYEE BLOGS But blogs are not without their risks. These informal postings, which are also intended as a permanent and public archive, may yield claims as diverse as defamation, disparagement, and copyright infringement, and even under the federal securities laws and the Sarbanes-Oxley Act to the extent that nonpublic corporate information is disclosed. Also, because of their ease of use, blogs are increasingly targets of hackers — an issue that companies need to consider when authorizing employee blogs. [FOOTNOTE 9] As the number of employee blogs have increased, so has the number of employers that have apparently discharged employees who created blogs that the employers believed did not reflect well on them. For instance, a flight attendant for Delta Air Lines alleged [FOOTNOTE 10] she was fired for posting “inappropriate” pictures on her blog; one photo showed her in an airplane with some of her bra showing while another showed her in a plane with her legs highlighted. [FOOTNOTE 11] An employee for a tourism marketing office known on the Web as “Polar Penny” asserted that she was fired for running her blog; among other things, her blog had photos she posted of trash in her town. [FOOTNOTE 12] Even a Google employee apparently was let go over blogging comments [FOOTNOTE 13] the search engine allegedly found objectionable. [FOOTNOTE 14] Blog related actions have become so frequent that the term “dooced” has come to describe the act of being fired for a blog related offense. It arises in connection with a well reported claim by a Web site designer that she was fired for mentioning people she worked with in her blog, available at www.dooce.com. BROAD ACCESS Different employers may have different reasons for objecting to employee blogs, and management sensitivity is just one factor. Some posts might divulge confidential corporate information or trade secrets. Others may be defamatory — of the company, of its employees, or of competitors. Still others might highlight complaints or simply be offensive. If certain statements, jokes, photos, or other material put forth in the workplace would cause concerns, employers should have even greater concern if the content is posted on an employee’s blog due to the broad public accessibility to the content. The problem is not just a theoretical one about posted content; earlier this year, the Pew Internet and American Life Project reported that while there were 8 million blogs in the United States, there were more than 32 million blog readers. [FOOTNOTE 15] Thus, what is said in a blog is no water cooler conversation. Blog postings, aided by search tools as well as other distribution methods such as “feeds” that automatically channel information to interested users, can reach everywhere in the world that the Web reaches, and can be accessed by anyone with a computer. This does not necessarily mean that employers can — or should — simply bar employee blogs. For one thing, employers may not have the authority to ban a blog maintained by an employee from his home computer. While the First Amendment is not implicated (except perhaps in the case of government employees), it nevertheless may be impractical to accomplish, in much the same way that employers cannot prohibit employees’ use of e-mail accounts from their own PCs. Although a company can adopt a completely hands-off policy when it comes to employee blogs, because the commercial benefits and risks of blogs are high, companies should consider developing corporate policies for a company “blogosphere” that set forth standards and rules for blogging — and should enforce them consistently. Corporate policies can be as basic as advocating the use of spell checkers, suggesting that bloggers “write about what you know,” and recommending that bloggers check their facts before publishing them. The policy might make it clear that employees can blog about their personal interests and hobbies, but should avoid mentioning the employer’s name or location without company authority, and should always proscribe publication of trade secrets, confidential or proprietary business matters, obscene content, and discussions of colleagues as well as competitors. It also might be worthwhile having an employee add a disclaimer to his blog, noting that it is the personal views of the individual and does not express the views or opinions of any other person or entity. Additionally, most companies should have general Internet use procedures, limiting the use of office computers for business purposes except for incidental personal use, including blogs. Companies should also consider confidentiality agreements signed by employees that can help regulate blog content or block on site blogging. A confidentiality agreement may also provide a deterrent for ill-considered posts and a mechanism for redress in the case of breach. TAKING EMPLOYEE ACTION New York, an “at will” jurisdiction, essentially permits employers to discharge employees for any and all reasons, except those such as racial discrimination that are prohibited by law or where a contract or union agreement limits the right to fire. Off premises blogging should not fall within one of these exceptions. However, it has not yet been determined whether the New York Legal Recreational Activities Law [FOOTNOTE 16] might be deemed to provide blogger protection. Federal statutes also might implicate a decision to fire a blogger under particular circumstances. A blogger might be protected from discharge under Title VII, which prohibits retaliating against employees who oppose “unlawful” practices and protects discussion of unionizing the workplace if the blog contains relevant content. In addition, “whistleblowing” laws also may apply to “whistle-blogging.” In any event, public (and customer) perceptions of a company might be negatively affected if the company discharges bloggers who are critical of it. Taking such action also can affect employee morale. And, of course, a fired employee has all that much more time to devote to critical blog posts. Conversely, the public (customers) have in many instances reported an increase in confidence with a company and its integrity because employee blogs have provided early and candid information about product defects and potential corrections for problems. CONCLUSION Blogs can serve as venues for venting and bashing, or brainstorming and public relations. As blogs are increasingly accessible and accessed, the blogosphere will be yet another powerful commercial forum that a company will need to inhabit if it does not wish to be left behind. And companies need to consider the business and human resources issues almost as much as the legal issues when developing blog policies and procedures. Shari Claire Lewis, a partner at Rivkin Radler, specializes in litigation in the areas of Internet, domain name, and computer law as well as professional liability and medical device and product liability. ::::FOOTNOTES::::

FN1 See, http://blogsearch.google.com. FN12 See, http://news.search.yahoo.com. FN3 See, http://www.technorati.com/blogs/. FN4 For example, the Pew Internet and American Life Project reported over 8 million log users in 2004, a 54 percent growth from the prior year. See, http://www.pewinter-net.org/PPF/r/144/report_display.asp. FN5 See, Cahill v. Doe, 2005 Del. Super. Lexis 229 (Del. Super. Ct. June 14, 2005). FN6 See, e.g., Fresia Rodriguez Cadavid, “Tech Firms Tackle Challenges of Employee Blogging,” National Journal’s Technology Daily, Aug. 19, 2005 (estimating that that nearly 2,000 of Sun Microsystems 31,000 employees blog, mostly about information technology issues); “Case Study-Blogging: A blog all of my own,” Brand Strategy, May 10, 2005, at p. 28 (“Microsoft has 800 corporate bloggers,” and has encouraged other employees to blog). FN7 Talking From the Inside Out: The Rise of Employee Bloggers, Edelman and Intelliseek, Fall 2005. FN8 See, e.g., https://www.google.com/adsense, which provides targeted advertising to personal Web pages, including blogs. FN9 See, e.g., Peter Piazza, “Trouble in the Blogosphere,” Security Management, July 1, 2005, at p. 40. FN10 See, Jason Chow, “Blogger Beware: When new technology hits the workplace, early adopters and their bosses often clash,” National Post, Apr. 1, 2005, at p. 40. FN11 See, http://queenofsky.journalspace.com/ (now titled “Diary of a Fired Flight Attendant”). Delta’s justification was that by posing in her Delta uniform, the contents of her private blog reflected on the company. FN12 See, http://www.nunatsiaq.com/archives/40806/news/nunavut/40806_08.html. FN13 See, http://blog.plaxoed.com/. FN14 See, “‘Employee Blog Fever’ Has Security Side Effects; Technology is Imperative to Back up Acceptable Blogging Policies,” Business Wire, Feb. 22, 2005. For what is referred to as a “List of Fired Bloggers,” see, http://homepage.mac.com/popemark/iblog/C2041067432/E1132564304/. FN15 http://www.pewinternet.org/pdfs/PIP_blogging_data.pdf. FN16 New York State Labor Law �201-d. The Legal Recreational Activities Law makes it unlawful for any employer (without regard to size or number of employees) to take any adverse employment action (as defined in the statute) as a result of an individual’s political activities, consumption of legal products before or after work or recreational activities, so long as the foregoing occur off-site and without use of the employer’s property or as a result of union membership or activity. It is possible that it could be argued that blogging would fall within the recreational activities that are protected.

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