IMV2 : Blog Law

The following is a transcript for IMV2 : Blog Law. The original podcast is located here.

Moderator:

Welcome to the Internet Marketing Voodoo podcast brought to you by MindComet. And now here's your host, Ted Murphy.

Ted Murphy:

Welcome to Internet Marketing Voodoo, Episode 2. My name is Ted Murphy. I am the President and CEO of MindComet and with us this week is our special guest, John Dozier, President of Dozier Internet Law. John is a seasoned technology executive with a diverse background in both legal and litigation issues concerning the internet and E-commerce. John, welcome to the show today.

John Dozier:

Great to be here, Ted.

Ted Murphy:

John, one of the topics that comes up with our clients quite often is the legal issues surrounding blogs and consumer generated media. I wanted to ask you to be on the show today to kinda discuss blogs and the – the legal issues surrounding them. When you're looking at blogs and internet law in general, what are the issues that you're dealing with, with blogs and specifically, what are you dealing with it comes to employees posting on blogs and employees maintaining blogs, how does that all work?

John Dozier:

Well, I mean, you've got a number of legal issues that come up in blogs, the same way they come up in publishing anything else, and particularly – probably most analogous to a newspaper publication. But the blogs are the – you know dissemination of information to third-parties and with it comes all the risk factors such as copyright infringement, trademark infringement, defamation. Controlling what is posted creates issues and problems that potentially open up other areas of liability, so there are a whole host of legal issues and there is a significant amount of training that really goes into setting up and establishing the protocols for the people responsible for managing the blog.

Ted Murphy:

So I mean, I – I guess from our standpoint, you know, we work with a lot of our clients in establishing corporate blogs where they're – they're posting information about their products and their services and what's going on in their company, and in that respect I guess what you need to do is work with people to define very set guidelines for content and what can be posted, what can't posted. Is – is that correct?

John Dozier:

Yeah, well, of course, and the – the first issue is to determine whether or not you're going to be in complete control of the blog. If you as an organization allow third parties, whether they are employees outside this control group, within your corporation, or third-parties outside your company to post, then the legal issues and risks and liabilities are significantly great, and it's really outside of your control to a great extent. Then if you are a – just allowing a particular set of individuals who have been trained to post to the blog for purposes of communicating information to the public.

Ted Murphy:

So, in consulting with your clients, when you're looking at how to set up a corporate blog and how to best contain the risk do you – do you typically – are you working with a central person who is a – a content approver, if you will, and then you have contributors who are reporting to or submitting content to the content approver and then that person is then releasing information? Or do you open it up wider where, you know, you have a number of publishers that are able to publish to the blog, and it is just understood that they are going to follow guidelines?

John Dozier:

Well, it depends on obviously the client and how they're established. Typically, you just can't afford to have legal counsel reviewing everything so you pick a key person, and newspapers do it all the time, of course, with their editors. So ideally, you'd have an individual who is positioned as an editor. Has the ability to make the calls, the basic calls concerning potential copyright infringement, trademark infringement.

Probably the most prolific issue that we deal with in blogging is – is alleged defamation. And have some threshold rules and guidelines governing how to make the right decisions in the situations in which they're fairly black and white. Then you get into the grey areas, then it needs to be escalated typically to legal counsel if you're – you're seriously thinking about traveling down a road which creates risks. But again, every company has different risk levels, every company has different levels of sophistication and expertise.

Ted Murphy:

So we've been talking about basically corporate blogs and blogs that corporations are aware of and that are sponsor – that they're sponsoring the blogs, but what about when it comes to individuals. Let's say I am a – an individual working at a Fortune 500 company and I maintain my own blog where I talk about what's going on in the company. Are – are there guidelines where I can set for my employees what they're allowed to talk about, what they're not allowed to talk about and how does – how does that – you know how should a company manage that? Is that something that – that is covered by a general confidentiality agreement between the employee and the company? Or is that something that should be addressed very specifically in another type of agreement?

John Dozier:

Well, let's – let's face the – the realities of life in the U.S., assuming we're talking about U.S. law, which is – we have a lot of rights as individuals concerning freedom of speech. Balance against that is the protection of confidential or proprietary information. And most companies if someone is in a sensitive position or will already have a – you know, a confidentiality agreement in place with that employee.

If – if I was structuring a program, I would require every employee who intends to make public comments about the company in a blog to go through an application type process in which you're not – the company itself is not impeding his ability – his or her ability to publicly speak about non-confidential matters, but you're educating the person as to what they should and should not be able to say in terms of defamation, copyright infringement and disclosing trade secrets, etc. So –

Ted Murphy:

Yeah, I – I guess that, you know, that's – that's a big question is, you know, what is confidential information, what is defamation, you know. If – if I'm an employee and I – I'm working in a company and I – and I despise the – the food served in the cafeteria on my meal plan and I talk about how much I hate it and how bad it is for you and everything else like that is – is that defamation? Is that something that, you know, can – can the company control that, that I'm saying that?

John Dozier:

It could be defamation particularly if you're a – a food broker or you're in the business of selling those types of products. It could be a defamation in the sense that it's attacking the quality of your product and it could also create for employees who have stock options or own stock a securities issue.

Ted Murphy:

Okay.

John Dozier:

One of the – we deal with these types of cases all the time, but on both sides. We represent employees and we represent companies. All too often we find that legal action is initiated by a company against an employer or former employee because of statements that were made that were defamatory, coupled with ownership of stock interests. If there's an appearance of an attempt to manipulate stock then the employee is at extremely high risk in terms of getting sued or having an investigation initiated by a governing authority. So and from a company's standpoint, there needs to be education.

There needs to be communication. There needs to be an understanding what the risk factors are. There is – a lot of people think that under the communications decency act there is immunity from anything that you say or – on blogs and that's just not the case. That act is pretty restrictive in terms of it's application. It – it protects statements made by third- parties, but only in – in relatively limited circumstances. So it's a very, very, complex arena in this area of law and what we do see though, I think, is a lot – is a very high degree of carelessness. Both from the standpoint of employees as well as employers in terms of managing the dissemination of this type of information. There are many, many ways that it could damage a company and can damage an individual.

Ted Murphy:

A lot of the things that we're talking about there, are things that – that are specific to an employee or specific to the company in – in regards to blogs, but what about the legal issues surrounding consumer posts on a – on a blog? You know, if – if I post something about a new product that I'm releasing and I allow comments back from the – the public, what do I need to look for there? Do I – you know, is that opening me up for – for potential liability based on those public comments back on my blog?

John Dozier:

Yes, it is very high risk. Fundamentally, we in the U.S. determined, you know, back in the late 90's that this was a potential problem and could impact the free expression of ideas of the internet. So Congress passed immunity for the owners of blogs as long as they are not involved directly in managing content and really changing, potentially editing and changing what is being said.

If you're editing and changing what's being said, making judgment calls that could impact the – the message that's being sent out, then you – then you have absolute liability as a publisher for what third-parties are saying. But for most Fortune 500 companies, for instance, that – you know, they're operating on a global basis. They need to appreciate that. The courts have found a many different companies that jurisdiction for defamation lies in the country when it occurs on the internet, of course.

Jurisdiction lies in the country in which the damages have been incurred, so if someone in the U.S. comes on to a U.S. companies blog and publishes – states something that's false and damaging to a third-party, for instance in the U.K., and that's site, of course, is available in the U.K., U.K. law may apply which means you don't have that immunity under the communications decency act that Congress granted here in the United States. So the European or the, you know, outside the U.S. issue, in terms of defamation is – is a problem. As far as controlling what's being posted, someone could come on, if you're allowing images, and post something that it could be tremendously problematic and if you're not editing it and before it gets posted it could make it up onto your blog and you could literally be in violation of federal law and depending upon the explicit nature of the photograph, for instance, there may be, you know, criminal implications under the child pornography statutes.

And as it relates to posting images or posting content, you're always gonna have copyright infringement problems, to the extent that – that you as the owner of the blog are involved in, you know, promoting the message or the information that's been posted. You may have adopted it as your own, and which means that there's some other laws that protect blogs from getting sued when a third-party posts copyright infringing materials and that law may not apply. So you – you've got a lot of checks and balances here. If you do everything right, fortunately Congress has made it pretty easy to avoid publisher liability or the liability for acts of third-parties.

Ted Murphy:

But that doesn't necessarily protect you in a – in a global arena.

John Dozier:

It doesn't protect you in a global arena.

Ted Murphy:

Yeah.

John Dozier:

We've had tremendous success frankly on behalf of some of our clients getting very derogatory statements removed from blogs and forums because the clients were doing business in Europe. And our position is the immunity does not apply.

Ted Murphy:

Wow.

John Dozier:

So, there's a lot of different angles you have to work on both sides. You cannot assume that U.S. law applies and you cannot assume that any kind of lawsuit's gonna come at you in the U.S.

Ted Murphy:

Well, John, I really appreciate you spending the time with us today. Obviously all these issues are something that all companies need to consider when they're talking about blogs and they're looking at adding that to their marketing mix and certainly something that MindComet has to take into account when we're looking at the developing plans for – for our clients. If people are looking for more information and would like to contact John, you can go to cybertriallawyer.com. There you can find a lot of information about John's firm and the type of law that they practice. John I appreciate the time that you spent with us today. It's been very informative and I hope that we can have you back on a show again in the future.

John Dozier:

Great Ted, it's been a pleasure.

Moderator:

For more information on this week's topic, visit InternetMarketingVoodoo.com. This broadcast has been brought to you by MindComet, the Relationship Agency.

[End of Audio]

Marketing Resources
Download Top 10 Legal Issues to Consider When Creating a Corporate Blog (PDF - 684KB)

Listen to the Blog Law podcast.

Contact MindComet about creating a blogging strategy for your organization.

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blogs, blogging, corporate blogging, business blogging, consumer generated media, internet law