Legal Risks of Blogs
By Jay Hollander, Esq.
Jay Hollander, Esq. is the principal of Hollander and Company LLC, www.hollanderco.com, a New York City law firm concentrating its efforts in the protection and development of property interests relating to real property, intellectual property and commercial interests, as well as related litigation.
The content of this article is intended to provide general information relating to its subject matter. Providing it does not establish any attorney-client relationship and does not constitute legal advice. Personal advice in the context of a mutually agreed attorney-client relationship should be sought about your specific circumstances.
In the beginning, business saw the wisdom in having
websites. Then, it was email marketing and, more recently,
one of the latest innovations to catch on, “blogs”.
Blogs, short for “web logs” are frequently
modified and updated web journals, intended to convey
late breaking news or developments on a particular
subject. Not only can they be in writing, but, in the
era of MP3 players and multi-media Internet, can take
the form or audio blogs or “podcasts” or
Following having a website, blogs, in one form or
another, have arguably become the most important marketing,
public relations and advertising platform available
on the Internet. To some, perhaps many, they’ve
supplanted email newsletters and brochures as the most
cost effective, up to date and customizable form of
online communications with niche and mass audiences
As many employers have discovered, many blogs exist
to reflect and convey an individual blogger’s
personal opinions on a subject as well, including those
of a company’s employees. And, yes, they can
be used to say bad things and spread rumors about companies
and their employees without those companies’ awareness.
With the proliferation of easy to use and often free
web based blogging software, blogs are easy to set
up and can make anyone both an author and a publisher
But like other methods of establishing a foothold
on the Internet, blogs raise legal issues that can
pose significant problems to the unwary. Pitfalls await
not only bloggers themselves, but, potentially, their
employers and others.
How much of an image or piece of text found on another
website can be “copied” into a blog without
permission? What kinds of things can a blogger post
without getting into trouble with his or her employer
or someone else whose reputation might be injured by
what’s written? What if a blogger deliberately
or inadvertently reveals a company’s trade secrets
or the details of a stock, bond or real estate securities
offering prior to the issuance and distribution of
a prospectus? Even worse, what about paparazzi shots
of a company’s holiday party, showing people
in compromising situations?
While much has been written about the business and
marketing benefits of blogs, it is increasingly important
to consider and plan for the legal risks of blogs,
particularly, though not only, in the work place.
This is not an easy proposition since, like most things
Internet, the law has been slow and late to the party
and continues to struggle with a host of issues that
present themselves from the use and content of blogs.
For this article, let’s highlight some of the
major legal risks and issues that present themselves
in the commercial environment and discuss some possible
things that individuals and companies may do in an
effort to prevent running afoul of legal requirements
as they continue to be modified and created.
Before we start, it’s important to keep three
things in mind.
First, the fact that there are legal risks that may
arise from the inappropriate or unmonitored use of
blogs is not a reason to avoid using them. The business
benefits in terms of communication and the marketing
and public relations opportunities are too good to
pass up to be frozen because of the possibility of
legal problems. After all, that’s not kept anyone
from using the Internet for email marketing or maintaining
websites. Nor should it in the case of blogs.
The second thing to remember at the outset is that
the law on blogs is in its infancy, even more than
the law on the Internet in general. As a result, regular
monitoring of new cases and developments in the field
is vital. So, any company considering a corporate blog
must consider it a cost of doing business to maintain
a relationship with an attorney who can advise them
on this fast changing area before the blog is created
and, periodically, to ensure, as much as possible,
continued compliance with all the laws and legal interpretations
Third, blogs are essentially a communications and
publishing platform. They are not intrinsically more
safe or dangerous or good or bad, from a legal liability
point of view, than equivalent posts or content on
websites, or email communications, or newspapers, for
that matter. other than that they can be published
virtually immediately, absent appropriate safeguards.
This means that statements, opinions, accusations
or other material that might otherwise be posted offline
in magazines or other forums and that infringe copyrights,
defame individuals or violates commercial secrecy agreements
would be just as actionable if done on a blog as if
done in a more traditional media.
Basic to an understanding of legal risks from blogs
is that, whatever the subject of a blog may be, the
legal issues that are raised by blogs are a mixture
of intellectual property law, employment law, and common
law issues like defamation, privacy and trade secrets,
just to name a few. These legal principals apply online
as well as offline and concern a lot more than real
Some legal issues that have insinuated themselves
into blogs are similar to those that exist for websites,
like questions of copyright or trademark infringement.
Just because it’s easy to copy a photo of a product
or a professional photographer’s copyrighted
work or a piece of marketing material from another
web site doesn’t mean that it’s legal.
And the fact that the copying is for a blog post, rather
than an official website won’t usually change
anything unless it amounts to what the law regards
as “fair use”, a complicated analysis that
challenges lawyers and courts alike, and that isn’t
intended to protect most commercial activity.
Ironically, the very ease of setting up and posting
to a blog may actually increase the danger since so
many posts become spur of the moment, impulse submissions.
In other words, when you don’t have to pay a
web designer to put something up on a website, there’s
a lot less time for reflection.
Potential trademark infringement poses other problems.
Trademarks or service marks protect a company’s
brand and logos in their products and services. These
also cannot be appropriated in any way which either
confuses the audience as to the source of the blog
post, the approval or association of the trademark
holder or, in the case of “famous” marks,
things which tend to diminish or “dilute” the
value of the mark in the context of certain types of
In addition, published blogs posts can be the source
of claims for invasion of privacy and online libel,
a form of defamation.
Put simply, online libel, a form of written defamation,
concerns accusatory or “bad light” statements
made that are both demonstrably false and injurious
to someone’s reputation and which are made either
maliciously or negligently and without any legal privilege,
such as those applicable to certain statements made
about public figures by journalists that are made without
what the law considers “actual malice”.
While, generally speaking, mere opinions are not the
proper subject of a defamation claim, calling something
that is defamatory a mere “opinion” when
it is not, will not qualify as an automatic “get
out of jail free” card.
This is an area fraught with uncertainty and requires
serious attention on a case by case basis.
Workplace Issues , Employer and Commercial Liability
Blogs created by company employees, even on personal
time, pose their own particular problems for employees
as well as their employers. In fact, there are notorious
instances when employees who posted material on personal
websites that their employers considered damaging to
the company or potentially harmful to prospective clients,
According to widely circulated reports, at least one
blogger was terminated as a result of posting pictures
of her co-workers at an office party on her personal
website. Even though the blogger posted under an assumed
name and even though the blogger only used the first
names of the co-workers, her identity was apparently
discovered when the pictures were found online.
And if the blogging is done on company time, with
company provided computers and Internet access, companies
must watch out, because the use of workplace facilities
may leave employers open to claims based upon inadequate
employee supervision in claims made against the company
by third parties based upon the actions of their employees.
Blog postings can also pose a risk of unwitting breaches
of commercial non-disclosure agreements or the unauthorized
dissemination of company trade secrets. And companies
can have long memories.
The Web is replete with stories about employers who
discover postings made by current or former employees,
claiming, rightly or wrongly, that certain blog posts
compromised company trade secrets and may even have
violated an employee’s employment and non-disclosure
And, as in the case mentioned above of the blogger
who was discovered despite blogging under an assumed
name, using an alias won’t always prevent companies
or others from figuring out who the blogger is by what’s
posted in the blog.
While employer awareness of these possibilities is
growing, less often discussed, but potentially just
as important is the use of blog posts as evidence of
claims that are originally grounded in other sources.
For instance, if an employee sues an employer for sexual
harassment or hostile work environment related claims,
the original wrong might be based on crude remarks
or unwanted advances, yet evidence of the claim could
come from employees writing about it on a blog.
Even if they don’t give rise to a lawsuit, unmonitored
blogs can pose everyday bottom line business problems.
Apart from the legal risks per se, there are legitimate
business concerns that need to be taken into account
for the benefit of employers and employees alike. Certain
blog posts, even if not necessarily illegal or actionable,
can be plain bad for business, causing harm to a company’s
reputation in its marketplace or its standing among
peers in its industry.
As a practical matter, employers would also be rightly
concerned about the unauthorized use of company resources
and the accompanying drain on productivity
So, in the age of the “blogosphere”, its
especially important for employers and employees alike
to revisit their employment agreements, particularly
those portions dealing with non-disclosure obligations,
employee duties of loyalty and non-competition covenants.
Companies might also consider revisiting their employment
manuals concerning permissible and impermissible employee
behavior in the work place and may wish to review the
appropriate sections for modification or supplementation,
Companies entering into non-disclosure, joint venture
and other sensitive commercial agreements with other
companies should also make sure that this avenue of
potential trouble is adequately covered in the agreements.
Since blog posts can potentially be used as evidence,
they should be looked at the same as other electronic
records which might be the subject of subpoena or other
discovery in litigation. Companies may wish to be proactive
and set up teams made up of HR and IT representatives,
general counsel or outside attorneys, etc. to set up
a system for monitoring and retaining records of blog
posts that might qualify as “business records” under
the law and/or to prepare to respond to likely discovery
requests in the event of litigation.
While all aspects of the Internet, including blogs,
have been an undeniable boon to the both individuals
and business, the use of the digital medium carries
risks that many attorney specialists in other areas
are not equipped to deal with on behalf of their clients.
Clients seeking to begin or expand their use of the
medium are advised to seek qualified legal assistance
early to avoid needing much more of it later.
Jay Hollander, Esq. is the principal of Hollander
and Company LLC ( www. hollanderco.com) , a Manhattan
law firm concentrating in helping individuals and businesses
acquire, protect, develop and profit from their property
assets, ranging from intellectual property to real
estate and commercial property. General inquiries can
be sent to firstname.lastname@example.org .