If it flies under the company radar, a blog can present significant legal risks. It can also benefit marketing and sales efforts. So what should you do?
I recently learned that one of the employees of our family-owned company has started a blog. So far, I've seen nothing objectionable on it, but I wonder, should I be concerned about her disclosing company information online?
— P.S., Staten Island, N.Y.
Your employee is not the only worker out there spilling her guts to any number of perfect strangers. Forrester Research estimates that more than 27 million blogs are posted online daily (see BusinessWeek.com, 2/12/07, "Bigger Bucks for the Blogosphere"). Many are written by employees sharing information not only about their personal lives, but also about their work days, their companies, and their bosses—i.e, you!
In the past couple of years, many high-tech corporations have discerned an upside to employee blogging. For instance, company-sanctioned employee blogs offer a novel opportunity for the business to communicate with potential customers and market new products through employees who can create buzz around hot new products and services (see BusinessWeek.com, 5/15/06, "Does Your Small Business Need a Blog?").
However, an employee's blog—particularly if it flies under the company radar—can also present significant, real-world legal risks, says Charles Savoni, principal of Newport Beach (Calif.)-based The General Counsel, a firm that places attorneys inside the offices of its corporate clients. Savoni, who has worked for large and small employers for 15 years, outlines the legal risks that could arise through an employee-blog-gone-wrong: "Leakage of company confidential or sensitive information; loss or misappropriation of trade secrets; defamation and privacy torts, trade libel; and possible infringement of intellectual-property rights involving copyright or trademark protections," he says.
First, Some Research
Although your family-owned company is probably not publicly traded, or about to go public, a company involved in that process could find a nonsanctioned employee blog raising difficulties under any number of federal securities laws, Savoni says.
What's your best response to this situation? Don't overreact by confronting your employee immediately and coming down hard on her, Savoni recommends. First, take the time to look at the blog closely and figure out when it's being written and why. "Before you talk to her or take any actions…find out whether she's blogging on her work computer during company time or after-hours on her home computer," he says.
Often, employees believe they can say whatever they like about their employer as long as they're saying it on their own time, from home. But Savoni points out that generally accepted legal principles hold that every employee owes a "duty of loyalty" to her employer and that loyalty doesn't disappear during evenings and weekends.
Review Company Policy
If this employee is blogging from the office during work hours, you need to figure out whether this activity is a drain on her productivity, or if it might be incorporated into her duties as a part of your established marketing efforts. If the blog content is mostly personal, your employee should be prohibited from blogging during work hours. By reading the blog, you should be able to determine whether its potential benefits outweigh the legal risks inherent in the medium.
You should already have an employment policy in place that requires your employees to hold all proprietary and sensitive information of the company in confidence. "You need to remind the employee of both her duty of loyalty to you and the confidentiality policy, explaining that a breach of either in a blog could result in discipline, including possible discharge, even if her postings occur outside of work," Savoni says.
You may also want to adopt a formal prohibition against blogging during company time on company computers. "You should review your employee handbook and your Internet and electronic-communications policy, and revise them accordingly to specifically prohibit the blogging," he says.
If you determine that this blog may be beneficial to your company's marketing and sales efforts, set some guidelines and rules about what's acceptable communication by this employee and any others who take up the practice. You may even take the opportunity to establish a corporate blog and recruit some management team members—such as your heads of marketing or sales—to contribute.
"Explain to your employees the potential liabilities involved in posting to the blogosphere," Savoni says. "A critical component of your blogging policy will be to provide examples showing sound judgment and what is permissible, and to contrast those with others illustrating poor judgment and what would not be permitted."
Certainly, you should also consult with your company's attorney before taking any measures on this issue, especially any drastic action such as terminating an employee for blogging derogatory comments about your company or disclosing sensitive information, he says.