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 video blogs.

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 alike.

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 in minutes.

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 affecting it.

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.

Major Risks

Intellectual Property

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 estate law.

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 commercial activities.

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, were fired.

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 agreements.

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, as necessary.

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 jh@hollanderco.com .