To Blog or Not to Blog . . .

To Blog or Not To Blog

To Blog or Not To Blog

Weblogs, popularly referred to as “blogs,” are the corner soapbox, complete with crowd commentary. They are an almost perfect answer to our universal need to be heard. You can become a blogger by creating your own blog, or by participating in someone else’s blog. In their simplest form blogs are nothing more than a website, or portion of a website, that is continuously updated. New material is typically at the top of the listing, and is responded to, or commented on, by others posting to the site. A blog is usually available to the public.

Blogging has many uses for both employers and employees. Companies are using them to provide information to customers, employees and investors. In addition to pursuing non-job related interests (e.g. politics), employees are using blogs to connect with one another and to comment on their employers. While laws vary somewhat by state, there are guiding principles to keep in mind.

First, a blog is public. (Unless there is a security feature, such as a password.) In deciding what to write, or how to say it, assume that everyone you know will read it. This means your mother, spouse, child, employer and/or co-workers. If your contribution to blogging says something untrue (think defamation) or discloses something you are obligated to keep secret (think trade secrets), these are actionable offenses just as they would be in a paper-based context. Even if you are attempting to be anonymous, there is a trail of electronic bits and bytes that, with the help of some court orders, can usually be traced back to their source.

Second, you can’t really control what people say about you, if it’s true. It’s unlikely that factually accurate consumer complaints or comments about your product or service can be removed from a blog. A powerful defense to a claim of defamation is that the statement is true. If a statement is a fact, it can generally be measured against some objective standard. If it is mere opinion dressed as fact that other people could reasonably believe,, it’s a defamation action waiting to happen. (On the upside, your customers and employees will often discuss your strengths with as much enthusiasm as they discuss your failures.)

Third, if you’re posting something you didn’t create, it’s not yours to post. Unauthorized reproduction of someone else’s writings or images is usually copyright infringement. In some cases the use of the third-party material is allowed as a fair use. Fair use is a statutorily defined term of art that allows some unauthorized copying for educational and transformative purposes. If you post someone else’s work, even if you credit them as the source, it can be taken down by your internet service provider should they receive notice of unauthorized use from the copyright owner. The ISP has this mandate under the Digital Millennium Copyright Act.

Fourth, pretending to be someone you’re not, or have endorsements you don’t, is generally a bad idea. In the commercial context, this is most likely to raise claims of trademark infringement. While you can use someone else’s trademark to make a legitimate reference to the trademark owner or the product, it is infringement to do it in such a manner that confuses third parties as to the relationship between you and the trademark owner. A related claim is violation of someone’s right of publicity, which occurs when their name or likeness is being used, without consent, by a third party to create a commercial advantage for that third party. First amendment based freedom of speech laws generally allow you to refer to a public figure in a truthful way, but liability can still attach, if a false endorsement is implied.

Fifth, it’s next to impossible to retract what you’ve written. The best you can usually do is create a new entry explaining the first entry. Most of us have sent an e-mail or two that we wish we could retrieve. A blog is generally created in the same type of environment. It feels private and informal when it’s written, because it’s just you and your computer. But, your post is really very public. Do you really want your mother, spouse, child, employer and/or co-worker to read what you just wrote?

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