Business Law: How to Keep Out of Trouble
When Blogging for Business

By Nina L. Kaufman, Esq

There's a lot of play being given to the term "social media" in the news these days. According to Wikipedia, '"social media" describes the online technologies and practices that people use to share opinions, insights, experiences, and perspectives with each other. I'm not a psychiatrist, but I'm guessing that part of the reason that there's this trend toward "sharing" is that living in a digital world can be extremely isolating. You no longer need a storefront to conduct business; you can earn money just as easily sitting at home alone in your PJs and bunny slippers. A business team can "meet" via video link; introductions to people are made via email. But we humans are largely social creatures, and need interaction. Ergo, the proliferation of ways to share: video sharing (YouTube), photo sharing (Flickr), opinion sharing (blogs), and business network sharing (LinkedIn), among so many others. It's easy to get lost in the digital universe. With the latest website and blog counts in the tens of millions, if a person blogs in the digital forest and no one comments, do you exist?

Business blogging is not easily pigeon-holed. More casual than traditional news reporting, yet not as "out there" as a personal-blog-gone-wild, business blogs occupy a not-quite-defined legal space. Laws are developing alongside the very blogging that inspires it. Some laws already apply in non-blog contexts: don't disclose another's trade secrets; bad-mouthing the boss is not a good idea; trumping up unfounded claims against a competitor will get you in trouble. If you are blogging for your business (that is, either publishing your own blog or posting comments on someone else's), what, briefly, are some of the legal issues that this brave new world of blogging raises?

1. Defamation and libel. Remember when your mother told you to "watch your language"? And "Think before you speak"? This is one area where being incendiary or flippant in order to get noticed in the blogosphere can garner you the wrong kind of attention. Defamation (called "libel," if in writing; "slander," if verbal) is the expression of false statements concerning another that cause harm to that person's reputation. Statements regarding a person's trade or business can render you particularly vulnerable to a defamation suit. Although truth is a defense, and you do have some leeway for expressing your opinion, it may not make good business sense to push the "free speech" envelope for the sake of principle. For example, saying that "Joe Doakes is a moron who probably eats goat meat for breakfast," may be seen as more of an opinion-type statement. After all, your estimation of Joe Doakes is not a verifiable fact, and his breakfast menu may be considered hyperbole on your part. But saying that "in my opinion, Joe Doakes puts goat meat in his company's products," could cause harm to his company's reputation...and trying to dress it up as your opinion may be as convincing as placing a top hat on a pig and calling it a gentleman. Will a retraction help? It depends on the laws of your state and how you publish the retraction.
   
   Some things you can do: (1) Consider setting speech guidelines on your blog, where visitors can agree to certain terms (such as your right to edit or remove posts) before being given the opportunity to post comments. (2) If you're posting to others' blogs, be gracious about removing your post if asked to do so. (3) Ask yourself whether your business really needs you to position yourself as a Michael Moore-esque gadfly/crusader. If the answer is "yes," have an in-depth consultation with an attorney to develop a strategy for handling these issues.

2. Copyright infringement There's so much fascinating, free stuff on other people's blogs, isn't there!? Can you use it? Well, yes and no. In many situations, what you see written on someone else's blog is covered by copyright laws. This means that, just like with other published printed materials, only the author has the right to use it. There is an exception called "fair use," which provides some guidelines as to permissible uses. Let's use my friend, Lena West's blog on technology issues, called Tech Forward, as an example. If I want to use a sentence or phrase from her blog post on social media to inspire commentary of my own, that's generally permissible; if I take whacking great hunks of her content and just copy it as is, that's less favorable. And worse, if I use Lena's content in a way that substitutes for her products or writing - for example, if I set up my own technology-related blog or products - that's one huge step even further away from fair.
   
   Some things you can do: (1) Consider reaching out to the companies whose text or photos you want to use and ask for permission. (2) Be original. It is not a violation of copyright laws to express yourself on the same topic - the question is how you express yourself and whether you use someone else's protected content to do it. (3) If someone claims that you have places infringing material on your blog, respond quickly, and consider removing the offending content.

3. Employee abuses. One of the amazing -- and frightening -- things about the Digital Age is the speed with which information can be shared. How can your employees cause trouble on the Digital Highway? First, there are the employees' personal blogs. Blogging can be fun (and addictive). There's a serious question as to how much time employees may take on the job to fill out their personal blog entries. This is not a new issue - handling personal matters on company time using company equipment came up with the advent of email, and with the telephone before that. Can your business withstand the loss of productivity? Second, there's the issue of what employees write, whether it's on their personal blogs or a company blog. To what degree are they expressing their dissatisfaction with their job, their co-workers, and your company? Even worse, how easy it is for them to post confidential information (plans, photos, documents, diagrams) or divulge company trade secrets?
   
   Some things you can do: (1) Have an employee policy on computer use that specifically addresses blogs (don't forget email and Internet use, too). (2) Let your employees know your position on blogging and what will be deemed acceptable - whether for personal or company blogs. Do this in person. This can go a long way to relieving employee concerns about what they can and cannot do in the blogosphere. (3) If you have a company blog, develop a protocol for reviewing (and possibly removing) posts on the blog. Identify the kinds of information that will not be permissible on the company blog, such as regulatory investigations, product launches, and customer information. Consider allowing only specific or senior employees to actively participate on the company blog.

4. Personal privacy violations. In some states, disclosing private facts (those that have not been disclosed previously) about another person can be a violation of law, especially if the issue is not one of legitimate public concern. If you're blogging for business, another person's sexual orientation or extramarital affair might not be a likely topic of interest for your blog. However, the rules are a little different if the other person happens to be a public figure, such as a politician or celebrity, or (in some cases) a high-profile business leader.
   
   Some things you can do: (1) Make sure that you can quote a reliable, prior source for the disclosure of sensitive personal information. (2) Depending on the issue, see if the people whose facts you want to disclose have done so themselves - maybe even on their own blog. If so, those facts have moved to the "public domain." (3) As with the issue of defamation, ask yourself whether it's essential to your business to be blogging on these kinds of issues.

In short, if you're blogging for business, keep this rule in mind: put your professional foot forward. This isn't the time or the place for frat house (or cat house) antics or language . . . particularly when caches can preserve foolish comments for posterity. You have the right to free speech, but you also have the responsibility to bear any negative consequences for that speech. Consider how you would want other people to respond to your postings. And if you really, truly have a need to condemn another entrepreneur, company, or product, get guidance from an attorney before you do it!

© 2004-2009 The Legal Edge LLC. Nina L. Kaufman, Esq. is an award-winning business attorney, author, and speaker. Under her Ask The Business Lawyer umbrella, Nina offers easy-to-understand business law resources that protect small businesses and save them money. To learn more, and receive our FREE "LexAppeal" ezine, visit http://www.GreatBusinessLawTips.com  or contact Contact Us. This article is for your general information only. Be sure to consult with an attorney regarding your particular situation to make sure you get the specific advice you need.

Nina Kaufman, Esq. Award Winning Business Lawyer, Author & Speaker