Problems and solutions to corporate blogging: model corporate blogging guidelines.

• Author: Ostrander, Benjamin

1. Introduction

   The Internet functions as a vehicle for various modes of personal expression ranging from creating personal websites and posting photographs to emailing and instant messaging. One of the newest and fastest growing ways of personal expression on the Internet is the blog. (1) A blog is the shortened version of the phrase "web log," which started as a sort of online diary in the early days of the Internet. (2) Blogs have become a popular medium for personal expression on the Internet, but they are not without controversy, especially in the workplace. (3)

   In recent years, there has been an uneasy relationship between employees who have become bloggers and the companies which employ them. (4) Companies have fired employee bloggers as a result of posting either negative comments about their employer or confidential information. (5) For example, Delta Airlines fired a flight attendant in October 2004 for posting racy pictures of herself in her uniform on her blog. (6) Microsoft fired an employee for taking and publishing pictures of Microsoft receiving Apple Computer's new G5 computers. (7) A graphic designer was fired after posting negative entries in her blog about her workplace and co-workers. (8)

   Employee blogging in the workplace raises several legal issues for both employers and employees. Namely, blogs could disclose confidential information, such as trade secrets, could defame the corporate image, or offend or defame co-workers and trigger employer liability. (9) Employee bloggers, on the other hand, believe their blogs are protected by the First Amendment to free speech rights or through privacy laws. (10) The balance between the employee's privacy interests and constitutional rights and the employer's liability concerns shifts when the employee blogger is an at-will employee who can be fired at any time for any reason. (11)

   The first part of this Note provides a brief history of an employee's free speech and privacy rights. This Note also outlines the history of blogging, discussing the evolution of blogging. Next, this Note examines blogging guidelines set forth by several different companies. The Note proposes a hypothetical situation showing how a company might act when confronting an employee blogger. Finally, the Note proposes a model set of blogging guidelines that balance an employee's free speech and privacy rights with the interests of the blogger's company.

2. Employee Free Speech Rights

   Historically, private sector employees do not have any protected rights to free speech. (12) In fact, an employer can fire an at will employee for any reason at all. (13) On the other hand, public employees have enjoyed First Amendment free speech protections since the late 1960s. (14)

   1. Public Employees

      The Supreme Court has excluded several forms of speech from First Amendment protection, including obscenity, libel, and slander. (15) In Pickering v. Board of Education, a school board fired a public school teacher for publishing a critical letter in a local newspaper about the school board's allocation of financial resources between educational and athletic programs. (16) To decide Pickering, the Court used a test that balanced the interest of a public school teacher, as a citizen, to comment on matters of public concern, with those of the State, as an employer, to promote an efficient operation. (17) Because employers are concerned with employee statements on sensitive issues that can disrupt the work atmosphere, the Pickering Test may be applied to suppress expression that affects the productivity of the workplace. (18)

      Connick v. Myers defined the Pickering Test more completely. (19) In Connick, the Court held that the employee's speech must involve "matters of public concern" to employ the Pickering balancing test. (20) The Connick Court ruled that the First Amendment did not protect speech involving a discrete office problem. (21) Once a court determines that an employee's speech is about a matter of public concern, the Pickering Test is applied and when the agency's operations are affected by an employee's speech they looked to whether the employee's speech was protected. (22)

      While public employees have few protected speech rights, federal employees are protected by the Whistleblower Protection Act. (23) This act protects federal employees against reprisals for reporting fraud, waste, and abuse. (24) Employees are protected against certain consequences for reporting the issue to the appropriate government agency or to her employer. (25) Many states have enacted whistleblower protections for employees who report fraud, waste, or illegality to the proper authority or law enforcement official. (26)

   2. Private Employees

      Private employees have no constitutionally protected free speech rights because they are typically at will employees who may be fired for any reason. While this may be disheartening to many employees, statutes have been enacted by some states to protect against employer retaliation for the exercise of First Amendment rights. (27) State statutes typically only protect political speech or comments about public concerns or interests. (28) Private employees may also seek protection under whistleblower statutes by asserting a public policy exception to an employer's ability to fire employees. (29)

      Federal legislation, the National Labor Relations Act (NLRA), contains provisions that protect private employees' speech. Section seven of the NLRA protects those employees who engage in "concerted activities ... for mutual aid and protection." (31) On its face, section seven appears to only apply to those employees engaged in union activity, but in practice it applies to all private employees who come together and act in concert with each other. (32) For speech to be protected under the NLRA, it must be connected to a group action with other workers or involve the preparation of such action. (33)

      Private employees may also protect their speech rights by seeking damages through the tort of wrongful discharge. (34) Under this principle, a fired employee argues she was discharged under circumstances that are contrary to established public policy. (35) The potential problem with this cause of action is that the courts have interpreted it inconsistently. (36) In fact, for the employee to be successful in his or her claim it is often necessary to point to a statute that specifically outlines the public policy that was abused by the employer. (37) Often, an employee may not be protected by the tort of wrongful discharge unless he or she is already protected by a statute.

3. Employee Privacy Rights

   The conflict between employees and employers regarding individual privacy rights can be better understood by looking at an employee's privacy rights and the employer's right to monitor employees' business activities for legitimate business purposes. (38) Privacy rights are not explicitly protected by the Constitution. (39) Private employees have few privacy rights in the workplace because their employer does not satisfy state action requirements. (40) The Fourth Amendment only protects government employees when the employee had a subjective and objective expectation of privacy. (41) Additionally, state law is inconsistent in its protection of employee privacy. Some states have enacted statutory protections and others have not. (42) The problem posed with protecting ideas and opinions expressed via an employee blog is that most blogs are posted on the Internet, rather than contained in an office environment protected by federal and state law, and anyone with access to the Internet can access them.

4. History of Blogging

   As part of the Internet's evolution, Internet users increasingly have been contributing to more of the content found on the Internet. Nowhere has this user-generated content been more prevalent than with blogs. In 1997, an Internet user named Jorn Barger coined the term "web log" or, in its shortened version, "blog." (43) The creator and editor of the content of the weblog is the "blogger." (44) Blogs have been found on the Internet since the late 1990s. (45) They were first used by Internet user groups, such as computer programmers, to document their thoughts and progress as they worked individually on the same project. (46) Early blogs were technology-oriented or simple personal diaries. (47) As early as 1993, the National Center for Supercomputing Applications created and updated one of the earliest blogs, which was a little more than a page consisting entirely of links to other web pages. (48) The blog was called the "What's New Page" and documented what was new on the Internet by linking to new sites. (49) Early blogs followed this form of link-driven sites, which pointed users to sites of interests to the blogger and contained commentary about the links published by the blogger. (50)

   Blogging did not hit its stride until the first blogging software was released in the summer of 1999. (51) A company named Pitas created the software, and a month later, a company named Pyra Labs released "Blogger" (a program for creating blogs through a web browser). (52) With the availability of web-based programs such as Pitas and Blogger, blogging underwent a period of explosive growth that continues to this day. (53) After the release of Blogger, blogging shifted from the link-based form it started as, to a short-form of casual journalism. (54) The shift to free-form blogging coupled with the fact that it became simple enough for any Internet user to blog propelled blogging's popularity into the 21 sc century. (55)

   While early blogs focused on topics pertinent to early Internet users and developers, blogs evolved quickly and now discuss anything a blogger wishes, such as music, politics, sports, or the blogger's other interests. (56) Many companies who maintain corporate blogs for customers to read have recognized that blogging is a potential business tool. (57)

   Blogs have never been...