The Legal Implications of Blogging at Work
The web log, or “blog,” an online diary where a person publishes his or her thoughts and opinions, is one of the most popular forms of expression on the internet. It has been estimated that one in seven people has a blog nowadays, and while many of those people are college students or bored celebrities, some bloggers have jobs. And for some of them, it is starting to seem like blogging might put them in danger of losing those jobs.
Blogging on company time, with company equipment, is of course forbidden or at least discouraged by most employers (just as many employers discourage personal internet and e-mail use). But more recently, a new phenomenon has arisen: bloggers are starting to get into trouble for blog posts they write on their own time – that is, when those posts are about their jobs and co-workers. Blogging about work, in other words, can get an employee in as much trouble as blogging from work.
The issue of bloggers being fired for what they write in their blogs has been around since 2002, when a blogger named Heather Armstrong was fired for complaining about her job on her blog, dooce.com. Bloggers even coined the term “getting dooced” to describe getting fired for blogging about work. But the phenomenon of “doocing” became major news in 2005, when several companies fired employees not for their work, but for what they wrote online after work. The most famous example, because it involved a big and powerful company, was the case of Mark Jen, an employee of the leading online search engine, Google.
Jen had joined Google on January 17, 2005, after 18 months working at Microsoft. When he joined Google, he created a blog, ninetyninezeros, which he described as “a personal journal of my life at google.” The blog, written in his spare time, described what he did at Google, the orientation process, the way the company was managed, and other details about the experience of working at Google.
One of Jen’s posts dealt with Google’s system of benefits, including free meals and on-site doctors, and with the upside and downside of this way of distributing benefits: “Every ‘benefit’ is on site so you never leave work… between all these devices designed to make us stay at work, they might as well just have dorms on campus that all employees are required to live in.” He also mentioned that Google’s health care plan was not as good as Microsoft’s. Google’s management felt that this and other posts on Jen’s blog were problematic – not so much for his spelling mistakes but for the way they presented the public with an inside look at the inner workings of the company.
Jen’s employers asked him to remove from his blog any posts that could be construed as giving away company secrets, and he did so. But two days after he had removed that material, Jen was fired, and, as he wrote on his blog, “either directly or indirectly, my blog was the reason.”
The firing of Mark Jen caused great dismay throughout the so-called “blogosphere,” where bloggers worried that they might be next to lose their jobs over an ill-advised comment about work. And the biggest problem was that no one seemed to know what the rules were when it came to blogging about work – not even the people who had been fired for it.
This essay cannot provide a definitive answer about those rules; every company sets its own policies, and there is, as yet, no statutory or case law about when someone can or cannot be fired for blogging. What this essay can do is identify some of the legal issues that may arise as a result of blogging about work, and some steps a blogger might take to protect against getting “dooced.”
Breach of Confidentiality
One potential danger of blogging, from an employer’s point of view, is that a blog might be used to give away confidential company information. Mark Jen’s blog originally contained posts that, in his own description, were about Google’s “financial performance and future products.” By reading Jen’s blog, a competitor could get an idea of how Google was performing financially and what new products and services it was working on – exactly the kind of information that a company needs to keep its competitors from knowing.
Sometimes it may be flatly illegal for a blogger to reveal information about the company. This is so in the case of trade secrets: company information that is a secret and protected by legally binding agreements. If a blogger reveals a trade secret on his or her blog, that is a violation of the agreement and the company can take disciplinary action, or even sue the employee for damages sustained as a result of the secret getting out.
However, even where a piece of information does not have the legal status of a trade secret, an employee may be required not to tell anyone about it. Most employment agreements will contain some provisions requiring the employee to keep certain information confidential: anything about the company’s financial position, or the projects it is developing, would usually be covered by a confidentiality agreement.
Libel and Slander
Blogging about work can also give rise to liability for defamation where the blogging about the employer is inaccurate. While there are few cases to date of bloggers being sued for defamation –it can happen. A blogger who posts malicious gossip about his or her boss will not only likely be fired, but the boss can sue for the harm to his or her good name.
This is related to the fact that blogging is likely a form of publishing, and any of the laws that apply to libel, slander and defamation in publishing will likely apply to a blog. This means that if a blogger writes a post saying something unpleasant about an employer or co-worker, something that is both untrue and harmful to the employer or co-worker’s reputation, that blogger could be liable in court for the damage caused, just as he or she would be for publishing it in the newspaper.
Bringing the Employer into Disrepute
While confidentiality and libel issues are important when it comes to blogging about work, they are by no means the most important issues. For one thing, those issues are fairly clear-cut: an employee does not have the right to give away confidential information on a blog, and a company is within its rights to fire an employee for doing so; and the laws of libel clearly apply to blogging. The thornier issue, and the issue that is likely to drive future complaints from workers who are fired for blogging, is what happens when a blogger writes something that is not confidential, not libelous, but still hurts the employer’s reputation by the very fact of its being publicly posted.
Many of the things Mark Jen talked about on his blog were not the types of things that would ordinarily be protected by a confidentiality agreement. Most of the things he wrote did not give away company secrets or reveal the details of what he was working on. The generalized things he said about Google’s work atmosphere were things he would have been free to say to a friend who worked outside the company. The problem was that Jen was not just saying things in private to a friend, but on a publicly-displayed website to anyone who happened to read it.
In serious cases, employers have the ability to dismiss an employee when the employee’s behaviour undermines the employer’s trust and confidence in the employee or when the employee’s conduct brings the employer’s business into disrepute.
A blogger, then, can be fired or disciplined for something much less serious than giving away company secrets. He or she can get in trouble if an employer feels that a post is harmful to the company’s image or reputation, even if it is not something that is protected by trade secrecy or confidentiality agreements.
In Scotland, for example, a blogger named Joe Gordon was fired from his place of employment, an Edinburgh branch of the U.K bookstore chain Waterstone’s, for making disparaging comments about his employer and place of employment. Gordon, who had been working for Waterstone’s for over ten years, wrote a satirical blog in which he made sarcastic comments about various subjects, and one of the subjects he sometimes mentioned was work. In one post, he talked about how his boss had refused him permission to take his birthday off, and then asked him to work on a civic holiday:
Noticing he has put me down for one of those days anyway, the sandal-wearing bastard. Words will be exhanged – if he gives me my birthday off I will do his bank holiday day. If not he can kiss my magnificent Celtic ass, since it is voluntary.
On January 5, 2005, Gordon was called in by Waterstone’s management for a disciplinary hearing. At the hearing, management determined that his blog posts amounted to “gross misconduct” that had “brought the company into disrepute,” and he was fired.
In his defence, Gordon pointed out that he had not let his blogging activity interfere with his work (“indeed no complaint was made about my work”) and asked why the management had taken the big step of a hearing instead of talking to him about it privately. He also pointed out that any disrepute he might have caused the company with a few sarcastic blog posts was more than compensated for by the genuine promotion and good publicity he had brought the company in other capacities. Like Mark Jen, he indicated that he would have been willing to stop blogging about work if management had asked him to do so.
It is interesting to note that both Google and Waterstone’s, two very different companies, fired their blogging employees instead of just keeping them on and asking them to stop blogging about work. The probable reason for this is that once a blogger is associated in his or her readers’ minds with a company, even if he or she does not mention the company thereafter, everything posted on the blog may somehow reflect on the company’s reputation. Mark Jen had made post after post about his work at Google; even if he had switched to blogging only about personal matters, his personal life would to some extent have been associated with Google, and any embarrassing thing he might write about himself might also embarrass Google. Once a blogger is established as a potential source of damage to a company’s reputation, it hardly matters what is written on the blog thereafter: the potential damage remains, and the way companies tend to deal with it is by cutting off the association between themselves and the blogger.
When it comes to confidential information, a blogger should simply use common sense: if a piece of information is something that he or she would not be allowed to say to a potential competitor, it should not be said on a blog, where anyone – including a potential competitor – can read it. Publishing confidential information on a blog hurts an employer just as much as publishing it in a newspaper or a magazine, and is just as likely to mean termination for the person who publishes it.
Similarly, when it comes to defamation, the same rules apply to blogging as to any other kind of publishing: a blogger should not say something potentially damaging about another person if he or she cannot prove that it is true.
When it comes to the trickiest issue, namely how to avoid getting fired for posting non-confidential, non-libelous posts that displease the employer, there are no such easy answers. One thing is clear: free speech rights are not sufficient protection. Many bloggers think that their right to freedom of expression will allow them to avoid any repercussions from what they right. But in most cases, your right to free expression protects only your right to write and publish what you want; it does not mean that that same writing and publishing cannot be used as a reason for your dismissal.
One way some bloggers have found of dealing with this problem is to create private blogs, that can be read only by people who are invited to read them. Software such as Livejournal allows for the creation of blogs which are accessed using a username and password, and the blogger decides who gets a password. Mark Jen has said that he originally intended his blog to be read only by his family and friends; if he had created a private blog, he could have limited his readership to just those people, and therefore his posts could have been construed as the equivalent of talking in private to his family and friends – something all workers do, and something that would not likely have come to the public’s attention.
Private blogs are not very popular, for the obvious reason that most people who blog want their posts to be read by as many people as possible. A more popular solution, then, is to blog anonymously. John Palfrey, director of Harvard University’s Berkman Center for the Internet & Society, told NPR’s Talk of the Nation that an anonymous blog is a good, though not infallible, way for a blogger to protect against possible repercussions:
Now it’s obviously possible to determine who the anonymous or pseudonymous person is, so you don’t want to go too far with this, and obviously law enforcement needs a way to get in and find out if something really gets to an egregious level. But certainly if you do feel the need to say something about your corporation and it’s negative, it obviously would be sensible not to disclose who you are.
Anonymity is not an infallible shield, of course. Even if most of the blogger’s readers do not know who he or she is or where he or she works, the blogger’s employer or co-workers might be able to figure it out from the incidents described in the blog, and though they would have trouble arguing that such posts damage the company’s reputation, they might be able to argue that it sows disharmony within the company, and fire the blogger for that reason.
Still, whether blogging anonymously or under your own name, a good rule of thumb in blogging is that if a blogger has bad things to say about someone at work, it is better not to “name names.” A blogger is less likely to get into trouble if he or she does not mention the names, or even the functions, of the people he or she complains about. In other words, a blogger should feel free to “vent,” but not to be too specific about who is the subject of all the venting.
Conclusion: Setting Standards
Only a few years ago, many of the above issues were involved with the use of e-mail by employees. Now, most employers have developed policies on e-mail use, so they and their employees will know what is and is not acceptable in terms of e-mail use. Recently, an internet security company encouraged employers to set similar standards for “acceptable blog use.” It seems likely that within a few years, it will be the norm for employers to establish blogging standards, a list of rules telling employees what they can and cannot say about work on their blogs. Such standards would make it harder for a blogger to say all he or she might want to say about work, but they would also take away the air of uncertainty that currently surrounds the issue, and it would make it harder for an employer to fire a blogger for a type of posting that is not included in the list of standards.
Another solution adopted by some companies is to create company blogs, on which employees can post during work hours. With these blogs, employees can have the enjoyment of posting about work and telling the public what they do, and employers can set standards for what the employees can and cannot post about. By doing this, the employer can channel the energy of bloggers into a positive public-relations operation for the company.
Whatever happens, several things are very clear. One is that blogging is here to stay. Another is that, as long as blogging remains unprofitable, most bloggers will need to have day jobs. Still another is that many people will want to blog about their day jobs. And the most important thing of all is that bloggers should be careful what they say about their day jobs – lest they wind up adding to the list of people who have been “dooced.”