Should You Really Write that in a Corporate Blog? Legal Guidelines for Company-Sanctioned Blogs
This post was written by Charles Savoni of The General Counsel LLC.
Are blogs a benefit or a risk to a company’s reputation?
Corporate marketers agree that blogging is an effective and direct way to build a meaningful dialogue with customers and other stakeholders.
However, general counsels and other legal experts warn that corporate blogs can expose companies to risks, such as loss of productivity and trade-secret leakage.
Companies large and small are grappling with how to address blogging in their work policies. A recent case involving Eli Lilly illustrates the risks companies now face. Company employees divulged internal e-mails, marketing materials, sales estimates and scientific data on blogs exposing Lilly’s questionable practices promoting its drug Zyprexa as a “safe, gentle psychotropic” and downplaying negative scientific data. Later the information was picked up by the mainstream media, including the New York Times.
Blogosphere Is Replacing Madison Avenue
Today, more than 57 million blogs comprise the blogosphere, according to Technorati.
Just a few years ago, most companies dismissed the viability and advisability of using blogs as corporate communications vehicles.
Today, companies are realizing that their customers — both consumers and business professionals — are turning away from traditional advertising in favor of gathering information from the blogosphere. The result: Many companies are joining in on conversations through corporate-sanctioned blogs. The Fortune 500 Business Blogging Wiki estimates that eight percent of FORTUNE 500 companies publish blogs.
Risk-Benefit Analysis
As an employer, you have to ask whether the benefits of permitting employee blogging outweigh the substantial legal risks and the possible drain on productivity. The legal implications include possible outflow of confidential/proprietary information and/or trade secrets; defamation and libel; and copyright and trademark issues.
Companies must decide whether blogging is part of their corporate strategy, and then draft policies to give clear direction.
Getting on Board the Blogging Train
More and more employers are embracing the communications trend and watching employee blogging create tangible business value. These employers encourage blogging on company time, using the company’s own electronic communications systems.
If you are an employer that has determined that corporate blogging is useful, you should establish a blogging policy. The policy should set forth guidelines explaining to employees potential liabilities and reminding them of their duty to safeguard confidential information.
In developing a blogging policy, companies should provide employees:
- Examples illustrating sound judgment and permissible content
- Samples showing poor judgment and ineligible content to show contrast
- A reminder that their duty of loyalty to their employer still applies
- A warning that violation of blogging policy may result in discipline, including possible immediate termination
No Blogs Allowed
Despite the trend, significant numbers of employers continue to resist this path, concluding that the drain on productivity and the legal risks are too great for their organizations.
If you are one of these employers, consider adopting a formal prohibition of blogging during company time using company resources. A review of your employee handbook and your Internet and electronic communications policy would be in order. You can revise or amend the handbook and policy accordingly to prohibit such blogging.
Since employees may nevertheless blog on their own time, company policy and training should also emphasize the confidentiality, defamation, and loyalty concerns that may be compromised by careless blogging – and that such conduct may result in discipline or discharge.
The General Counsel LLC is an outsourced legal solutions firm providing in-house general counsel services to companies that lack the resources to employ full-time legal staff or need to supplement existing legal staff. The General Counsel now has a blog in which it shares views and perspectives about in-house legal solutions, comments on legal and compliance developments for emerging and mid-sized companies, and gives C-level executives and general counsels practical ways to address legal and business issues growing companies face.
Additional reading:
Business Week: “When an Employee Blogs About Work”
Posts in this Blawg on risks of employee blogging and blogging policies:
Firing bloggers to protect company image: Part I — the stories.
Firing bloggers Part II – challenges and opportunities of employee-bloggers.”
“Firing bloggers part III — avoiding unnecessary conflicts.”
“Firing bloggers part IV — more bad examples.”
“Ready, Aim, FIRED: Blogging Employees In the Spotlight Again (a/k/a Firing Bloggers Part V)”
Pros and Cons of Company-Sponsored Blogging.
One thing employers can do to mitigate risk while allowing employees to blog officially is to create an editorial structure.
This can be facilitated by using the built-in levels of authorization available in a tool like Wordpress to create one or more layers of approval prior to publication.
(Certain employees could simply be authorized to submit drafts, but not publish; others could write or edit but not publish.)
Even an employee’s own blog that mentions work could be sanctioned, subject to such protection, which would be invisible to the audience, like the oversight of a print editor.
I know this suggestion will rankle many bloggers who feel that the essence of a blog, even a corporate-sponsored one, is that there is a free, authentic “voice,” which would be suppressed by such editing.
Certainly there could be a tension between such editors (some would say “censors”) and the bloggers. But newspaper editorial staffs have long lived with such tension. Strong columnists with good judgment probably get published with little editing, but I suspect the authority of the powers that be to say “no” is always there, and the process always includes editorial review.
I completely believe that blogs can expose a company’s flaws and weaknesses. There is nothing to stop employees that have been fired or laid off from starting a blog and exposing the company. With the anonymity of blogs, it could be difficult to determine who is even writing the blog. Hopefully, potential customers will not rely on all blogs as credible sources of facts.
If we are expecting most employees to have the level of maturity to determine what is appropriate for a workplace blog, we may be overestimating our workforce. In today’s “anything goes” society (think of the cell phone conversations you hear that you don’t want to), there has to be some level of editorial control to avoid liability, protect workplace trade secrets and to limit damage to morale.