Bloggers and the law

In a recent column, I called on companies to follow the lead of Sun Microsystems and liberalize their corporate blogging policies. This week I spoke with no fewer than two law firms and three attorneys to get the skinny on where your life as an employee stops and your life as a private citizen starts, according to the law.

As you might guess, there are few hard-and-fast rules. However, Richard Neff, an attorney in the intellectual property and technology practice for Greenberg Glusker, opined that there are a few areas where a company could be liable for what its employees blog.

Suppose, for example, an employee says very negative things about a competitor or publishes an unfair product comparison. If these opinions are stated as facts and they are not true, it could lead to a “trade disparagement” suit. Similarly, if an employee says bad and untrue things about an individual, both the employee and the company might be liable.

Use of somebody else’s material in a company blog could also make the company liable for copyright infringement. Publishing a paragraph from a book is probably OK, says Kevin DeBre, also of Greenberg Glusker’s intellectual property and technology practice. If a blogger publishes the entire first chapter, however, then the blogger and his company could be liable.

Neff painted another interesting scenario: What if an employee says his company doesn’t expect to do that well in the next quarter, despite public statements to the contrary? Under Sarbanes-Oxley, the company could have a big problem. Or, in high tech especially, what if a blogger complains that the company’s CEO has been up in Redmond an awful lot lately? Did somebody say acquisition?

DeBre says that a company that takes it upon itself to monitor employee blogs is responsible for assuring that everything is vetted properly. Whenever there’s a slipup, the company may be liable.

Of course, these are all subject to the court’s interpretation. Lance Koonce, an attorney in the media, intellectual property, and technology practice for Davis Wright Tremaine, says that under the Communications Decency Act, Section 230, the courts grant immunity to message board operators for statements made on the message boards. A recent case that establishes that is Batzel v. Smith.

Koonce also spoke to me about bloggers and state “shield laws,” which give journalists the right to protect their confidential sources from disclosure. The question is, Do bloggers have the same right to protection as professional journalists?

Apple recently brought suit against several blogging sites for revealing trade secrets prior to release and sought to discover their sources by subpoena. The bloggers sought to block the subpoena, with The Associated Press and other news organizations submitting amicus curiae or “friend of the court” briefs on behalf of the bloggers. The judge skirted the issue, Koonce says, by ruling that the bloggers broke the law; in that case, even professional journalists wouldn’t be protected.

Finally, a Federal Communications Commission commissioner recently wondered aloud whether a blogger who provides a link to a political candidate’s site is providing support for that candidate equal to a monetary contribution.

Koonce also reminds us that general liability insurance does not cover blogging. Sorry if I spoil anybody’s blogging fun, but in this litigious society, it’s not bad to keep these examples in mind.