With advances in technology, the increased reach of the electronic soapbox has made it possible to be heard worldwide – literally – with the click of a button. And it’s happening with increasing frequency. It is estimated that nearly 5% of the American workforce now has a personal blog. Perhaps even more staggering, the percentage of college students using social-networking Web sites such as Facebook and MySpace is at 90%. Technology has created a generational divide. On the one side are high school and college students who routinely – and virtually – live their lives through social networking sites and blogs. On the other side are their parents who still look at home videos and photo albums.
CEOs and other high-ranking company officials are becoming increasingly a part of the “google generation.” They are creating personal blogs and are communicating with friends and employees through these electronic social networks. Some welcome this new and egalitarian method of communication; blogging can be a powerful marketing tool. It can also be an effective means to recruit employees, communicate and organize knowledge, collaborate with colleagues, and share information with clients and vendors. They offer a unique opportunity to put a human face on a corporation and to offer an exclusive look at the inner-workings and culture of a company that traditional media cannot parallel. Blogging also permits people to spread their ideas everywhere without reliance on publishers, broadcasters or other traditional gatekeepers. While the sharing of information and ideas has never been easier, it comes with very real risks. This article addresses some of the legal minefields related to executive blogging and offers practical tips for employers when their executives decide to blog.
Disclosure of Confidential and Trade Secret Information
High-ranking executives come into daily contact with employer trade secrets and proprietary information. The advent of executive blogging has dramatically affected who can communicate with whom, when, how and why. Blogging’s general availability means that executives can now transform their previously informal and ethereal personal communications into a published public document, a capability very much at odds with trade secret law’s reliance on limited communication. In effect, blogging has significantly enhanced the likelihood of catastrophic disclosures of trade secrets and other proprietary information.
Consequently, an employer’s duty to ensure that its proprietary information remains just that should now include updating company policies to prohibit or limit blogging disclosure. This may include formally obtaining employees’ explicit acknowledgement of blogging policies, enhancing training, further limiting access to information, and implementing monitoring systems to detect violations. An employer’s policy regarding confidential information should also extend to the protection of information under state and federal securities laws, such as information about pending mergers, stock splits, or other non-public corporate information. Because blogs tend to be written in a casual style, employers should specify what types of statements might run afoul of securities laws; for example, an employee’s off-the-cuff comment that “something big is coming for the company” may well trigger an SEC investigation.
Defamation, Privacy, Discrimination and Harassment
Disgruntled employees who engage in “cybersmear” of co-workers or the employer, or who inadvertently reveal private information about other employees, create significant corporate exposure. This is particularly so since the broad-based exposure of personal information severely diminishes the ability to protect reputation by shaping the image presented to others. Reputation plays a critical role in society, and preserving private details of one’s life is essential to it. The elevated visibility that comes with living in a transparent online world means that past transgressions may be more difficult to overcome. People must now live with the digital baggage of their past.
Cybersmear can lead to claims of harassment, invasion of privacy, defamation or intentional infliction of emotional distress. Moreover, in certain circumstances, liability can be imputed to the employer. Employers may be vicariously liable for the posted statements of their employees if the online forum is found to be an extension of the workplace and in the context of the requisite principal-agent relationship. In addition to vicarious liability, an employer may also be held directly liable for negligence, including negligent hiring or supervision.
One of the advantages of blogs and online friend networks like Facebook is the informality with which people communicate. With such informality, however, comes the risk of misinterpretation. Therefore, before posting anything, employees – and especially executives – need to consider whether the statement could be misconstrued or misinterpreted.
Additionally, people tend to congregate around those who share their beliefs, political leanings or values. By choosing to invite certain employees to be their online friends, executives expose themselves to potential employee morale issues, accusations of favoritism or discrimination claims. Executives who choose to send friend requests to employees should be mindful of their employee-friends’ demographics. Does the list include only older or younger workers? More men than women? Does the list inadvertently leave off certain protected categories of employees? Furthermore, executives should consider the fact that the ability to view an employee’s Facebook profile may provide them access to other personal information, such as age, marital status, familial status, or religious affiliation.
Copyright and the Fair Use Doctrine
Employers who encourage blogging by employees or provide a “bulletin board” Web site for employee use must also consider copyright issues. If employees choose to post articles for comment, employers may be held liable for unauthorized article copying resulting in copyright infringement.
What to do?
There are no perfect solutions to the issues raised by executive blogging. However, if an employer chooses to sponsor a blog or permit workplace blogging, it should, at a minimum, implement a blogging policy outlining the company’s position. Blogging policies should explain when and where blogging is appropriate. They should provide guidelines for the types of content permitted in a blog – whether it be work-related or personal. Arguably most importantly, the policy must be enforced uniformly so that all employees, including executives – are subject to it. At a minimum, a company’s blogging policy should:
- Instruct whether blogging during work hours is permitted and whether blogging on company equipment is permitted;
- Require employees to maintain the employer’s proprietary information in confidence;
- Prohibit employees from using the employer’s intellectual property on their blogs;
- Require that the blogger respect the dignity and privacy of others;
- Prohibit anonymous blogging;
- Prohibit employees from linking to the employer’s Web site from their personal blogs;
- Establish employee responsibility for statements made, including compliance with state and federal laws and general company policies and codes of conduct, such as ethics, loyalty, solicitation, access to records, copyright, privacy, non-harassment and nondiscrimination policies;
- Establish whether and under what circumstances employees can discuss the company’s competitors, clients, vendors or suppliers;
- Identify a gatekeeper, such as in-house counsel, who reviews any material before it is posted by high-ranking executives;
- Prohibit blogs from becoming a forum for raising internal complaints alleging harassment, discrimination, etc.;
- Designate an appropriate person to whom questions or concerns about blogging or a specific blog can be addressed;
- Inform employees that their blogs may be monitored;
- Warn all employees, including high-ranking employees, that inappropriate blogging activities may result in discipline, up to and including termination;
- Require that employees provide a signed acknowledgement of their receipt and understanding of the foregoing; and
- As to high-ranking executives subject to employment agreements, consider drafting “for cause” termination language that would include serious violations of the company’s blogging policy.
In a world where the popularity of blogging and social networking continues to increase exponentially, employers will face increasing legal issues. To minimize those issues, employers need to establish clear and comprehensible policies and educate their employees about the benefits and dangers of blogging and social networking. In doing so, employers can avail themselves of the benefits of employee blogging while reducing the risk of legal exposure.
Similarly, employers must educate executives on the benefits and dangers of blogging so that they can make fully-informed decisions regarding whether to blog and what content is appropriate to post if they do choose to blog. It is also essential that executives consider the ramifications, as well as the benefits, of engaging in social networking with lower-level employees. Befriending employees from a position of power is one more example of the growing trend towards informality and lack of separation between upper-level management and lower-level employees. Blurring the boundaries between public and private and management and non-management employees makes it increasingly difficult to maintain an appropriately professional relationship and to keep one’s personal space and the workplace separate.