Risk Management for Bloggers

Christopher J. Boggs, CPCU, ARM, ALCM
December 12, 2008

Bloggers can expose themselves to legal trouble (and its resulting expenses) with just one mouse click; individuals and businesses creating, sanctioning and/or hosting blogs should apply basic risk management techniques to the use and maintenance of these sites. Following are a few questions every blogger (individual or business) should ask of the content contained in their blog and the blog itself:

• Do readers consider the blog a credible source of information and depend on it for up-to-date information (a matter of opinion to be judged based on analytics and comments)?
• What is the point of the blog? News, venting, idea exchange, etc.? Bloggers must apply the same level of care regardless of stated goal, but may feel like there is less of a requirement if the blog is not a "news source."
• Is information in the blog accurate?
• Have facts been checked (as required by due diligence standards) or have they simply been accepted as heard or read elsewhere without further verification?
• Have printed facts been attributed to the original sources?
• Are the quoted information sources reliable?
• Are rumors and gossip printed as fact or clearly labeled and separate from news?
• Are editorial and opinion statements specifically labeled as such?
• Are comments in news and opinion pieces fair and based in fact (truth being a defense) or could they be considered malicious, libelous or defamatory?
• Is the person being written about a "public" figure? (Public figures can expect to be written about; private citizens are to be granted privacy unless actions or positions thrust them into the public view.)
• Is the information original or is it wholly or greatly plagiarized from another person or entity without proper attribution? (Some use allowed by the Fair Use Doctrine. But the parameters for such use is vague.)
• Is the content considered a "public domain idea" utilized by and available to the public at large, or simply "common sense" ideas and information not limited to or necessarily attributable to a specific person or entity?
• Is the information proprietary? Release of such information may financially harm a person or entity and/or cause the loss of market advantage.
• Online content is not necessarily "public domain" information. Permission may need to be secured before including content or photos found online (leads to the possible charges of copyright infringement)?
• Are paid advertisements clearly identified and separate from news and editorial content?
• Are correction, retraction or removal procedures in place to respond to a claimant's demand?
• Is the source of the blog clearly decipherable or is it written anonymously? Hiding behind anonymity brings the veracity and intent of the blog into question; potentially making proof of malicious intent easier.
• If comments are allowed, are posters allowed to express any opinion (without the use of profanity or racial or religious slurs, etc.) or does the blog host closely edit the comments? Both extremes could cause problems; a media lawyer should be consulted.
• Who/how many in the company can post a blog?
• Are blog posts approved before being published?
• Is information in past blogs reviewed to assure that previously published and currently viewable information is still relevant and accurate? For example, DeLorean's arrest was front page news, but his subsequent acquittal and release barely received press. To avoid charges of libel, old information should be accurately updated or removed. (I realize this is an old example, but a good one; most people never heard that DeLorean was acquitted.)

Beyond these questions, consideration must be given to the employer's potential liability for or harm caused by employee-maintained blogs. As in the Hollo suit, employers can be pulled into personal injury suits even if they did not direct or sanction the employee's blog. Additionally, employees may post information or opinion harmful to their employers, such as trade secrets or defamatory statements that harm the employer's reputation in the community or lead to employment related practices type suits from other employees or even third parties.

Blogs maintained by employees may require monitoring by their employers. Those employers may even want to consider updating the employee manual to add a section addressing blogs, notifying all employees that blogs may be monitored for posts damaging to the employer or potentially subjecting it to suit. There is a delicate balance between the employee's right to free speech and the right of the company to protect its interests. A lawyer experienced in this area of employment law should be consulted regarding the proper way to set up and monitor this program.