Blogging is everywhere, and whether or not you know it, your employees may be up to their necks in it. Should you care? Absolutely. Improperly managed, blogging can expose your company to significant legal and business risks.
Blogging is a form of open self-publication on the Internet and has become a major preoccupation of millions of people.
There are believed to be as many as 133 million blogs worldwide, with more than half of those published since 2005. With the explosion of social media platforms such as Facebook, Twitter, MySpace and LinkedIn, blog posts can now be shared instantaneously on multiple platforms, with the corresponding exponential legal and business risks.
According to recent studies, 34% of U.S. companies use blogs for external marketing purposes, and that figure is expected to grow to 50% by 2012.
A business blog can be an effective marketing device to “spread the word” about a company’s products or services, corporate philosophy and recruitment needs and to differentiate it from competitors.
Unfortunately, a business blog can also lead to significant liability for companies or otherwise adversely affect a company’s business – for example, through leaks of corporate strategies or proprietary information.
There are legitimate concerns about the legal risks associated with employee posts to blogs because, unlike other forms of employee communication, blog posts are public and available around the world in a matter of seconds through RSS feeds, search engines and inter-linked social media platforms.
Blog posts may also get picked up by other bloggers, the media and, perhaps most importantly, allow competitors to gain information about their rivals (or gather information to challenge a company using its own disclosure).
If you are a business owner or executive, you need to think about some of the key legal risks that can result from a business blog and consider implementing precautions to minimize those risks.
Some of the potential legal risks include:
Defamatory statements: Employees may make defamatory statements (intentionally or unintentionally) on a blog about a third party, exposing the company to liability.
Disclosure of trade secrets: Employees may inadvertently disclose or share company trade secrets or disclose the secrets of third parties in partnership with the company.
Disclosure of proprietary information: Business plans, marketing initiatives, financial information, corporate strategies or other confidential information may be posted by employees on a blog, possibly causing significant and irreparable damage to the company.
Disclosure of personal information: Employees may inadvertently post private information about other employees or third parties, and the company may be liable for failing to protect the privacy of the information.
Infringement of intellectual property: Employees may infringe a trademark in a blog post or upload material protected by copyright, exposing the company to liability for infringement.
Disclosure of public company information: Public companies face additional risks based on securities disclosure rules. Employees may make material misrepresentations on company blogs that could result in serious sanctions against the company by securities regulators or attract civil liability.
Competitor and law enforcement review: Competitors and enforcement authorities may use statements made by a company on its blog against it in legal proceedings or government or regulatory investigations.
Steps to reduce risks include:
Blogging policy: Companies should prepare, implement and enforce a written blog policy that sets out what can and cannot be written on business blogs. The policy should make it clear that employees should refrain from posting inappropriate information to a blog or make defamatory, harassing or other derogatory comments about the company, its employees or others.
For public companies, the policy should include examples of the type of information that should not be posted to a company blog. Employees should be required to review and sign the policy when they are first hired.
Training: The company should provide training sessions on its blog policy to its employees that include the legal and business consequences of violating the company’s policy.
Monitoring: company blogs should be monitored regularly to ensure compliance with the blog policy with the goal of finding a balance between protecting the interests of the company and encouraging employee blogging.
Disclaimer: Companies should ensure that company-sponsored blogs written by employees contain appropriate disclaimers that, to the extent possible, limit the company’s liability for statements made by the employee and other potential claims arising from blog posts.
For more of the legalities around social media, see Karl Gustafson’s column (issue 1093; October 5-11).
Christine Mingie Duhaime and Steve Szentesi are lawyers with the firm of Hakemi & Co. in Vancouver.