Never Mind the Bloggers, Here are the Risk Factors

June 30, 2006

Blogs are coming of age, after achieving precocious early development, putting on an astonishingly prolific growth spurt – with some inevitable growing pains and ugly moments along the way.  Blogging may not be the new rock and roll but it’s got a lot of people jumping.


Blogs have made the headlines consistently throughout their adolescence.  Merriam-Webster named “blog” as the word most often looked up on its dictionary-website in 2004[1] and defines a blog as “a Web site that contains an online personal journal with reflections, comments, and often hyperlinks provided by the writer”.  Since then, “blogs” and “blogging” have fallen into common usage by writers, readers and the media.


But the expansion of blogging has not stopped there.  David Sifry, founder and CEO of Technorati (the most famous blog search engine) announced in April on his blog[2] that the “blogosphere” doubles in size approximately every six months, with approximately 37.3 million blogs in all,[3] 1.2 million posts a day and a new blog created every second.


Alongside the stories about the increasing pervasiveness of blogs, we have seen famous (and infamous) stories about the legal issues raised by blogging culture.  We review some of the big stories below, provide some tips for would-be bloggers and give some suggestions about what employers should do about the increasing likelihood that their employees are blogging.


Be careful who you blog about


The informality of blogging culture can be deceptive.  Most blogs are public, permanent and searchable.  A libellous comment on a blog may be actionable in the same way as it would be if published in the traditional media.  We have seen in the past George Robertson being paid an undisclosed sum by the Sunday Herald for a defamatory comment on a web forum[4] and in January this year we heard that a blogger in Minnesota was sued for allegedly defamatory comments published on his blog about a local PR firm.[5]


Blogs stand out from other Web sites because they create and document a dialogue between writer and audience – readers can react to a story as soon as it has been posted by adding their own comments.  But obviously this comes with a risk: who is responsible if someone posts a libellous comment?


Bloggers may explicitly disclaim liability for comments posted to their blog in their terms of use, but if they choose to edit a comment then they will lose out on the protection offered under s.1 of the Defamation Act 1996.


Other bloggers and message board operators are often best advised to follow a “notice and take down” procedure: readers have the opportunity to notify the moderator that a comment is defamatory, offensive or otherwise unlawful; the comment is then automatically removed and either a moderator decides on a case-by-case basis whether to reinstate the comment (which can be time consuming and therefore expensive, but also risky because the moderator is taking responsibility for reinstated comments), or the comment is permanently removed (which does mean that there is a risk that genuine, lawful comments could be deleted on the whim of other readers). 


Blogging about your boss?


Anyone blogging about their employer needs to tread very carefully.  Again, despite Merriam-Webster’s description of a blog as a “personal journal”, a blog is a public document, and the usual laws affecting employees will apply.  Before writing about their day at work, bloggers need to consider the terms of their employment contract, their implied duty of “mutual trust and confidence” and obligations of confidence.  US airline attendant “Queen of the Sky”[6] was sacked by her employer and became an overnight blogging celebrity after posting pictures of herself in her uniform.[7]


Equally, employers need to follow appropriate disciplinary procedures if they decide to take action against employee-bloggers.  Waterstones sacked Joe Gordon, author of the popular “Woolamaloo Gazette”[8] blog, after he criticised his employers online[9] (he referred to them as “Bastardstone’s” and his boss as “Evil Boss”).  Gordon subsequently appealed successfully against his dismissal[10] – but in the meantime Forbidden Planet had got wind of his writing and offered him a job, including the role of company blogger.[11]


The dividing line between what is acceptable comment about an employer and what will legitimately result in disciplinary action is not clear-cut and will depend on the employee’s role and responsibilities and what the employer has told the employee (see below about blogging policies).  In May this year we heard the story of Erik Ringmar, an academic who had spoken out in forthright terms on his blog about his university employer, which resulted in a reprimand from the university.[12]  Now, Ringmar is maintaining his right to free speech; the university says the issue is “closed”.


The massive rise in hits for the blogs of both Joe Gordon and Eric Ringmar serves as a warning to employers to be on solid ground before criticising bloggers because the so-called “blogosphere” is quick to defend its members.


Blogging: what’s your policy?


Employers are increasingly waking up to the inevitability of employee bloggers and, sensibly, seeking to put parameters around their blogs, whether by way of a separate blogging policy or a tweak to an existing staff handbook or IT policy.  The Met Police recently caused controversy[13] when it introduced rules on what its employees could say on their blogs – and subsequently several bloggers (including the appropriately-named World Weary Detective) have hung up their blogging boots.  The Met’s new rules apparently include a restriction on “expressing views and opinions that are damaging to the organisation or bring the organisation into disrepute”.


Sun Microsystems has long been seen as a champion of blogging at work for positively encouraging its employees to blog – but has also felt it prudent to give its employees some guidelines[14] on what they should and should not be saying, advising employees that “it’s all about judgment: using your weblog to trash or embarrass the company, our customers, or your co-workers, is not only dangerous but stupid”.  Though Sun has framed its guidelines in a more blogger-friendly manner, this is not wholly different to the restriction imposed by the Met Police.


The trick is to be clear without being overly prescriptive – the latter is likely to be perceived as fussy and heavy handed and get short shrift from the blogosphere, particularly where the employer attempts to put bounds on what the blogger does in his private time where this is not related to his day job.  However, bloggers should remember the case of the probation officer whose dismissal because of his interest in bondage, domination and sado-masochism was upheld on appeal as a proportionate response in part because he had publicised his interests on a Web site.[15]


The blogging journo


A recent report found that bloggers are forming a disproportionately influential part of society[16] – bloggers provide instant news and comment, which is illustrated by the peaks and troughs of posting in relation to major world events.  A case in the US examined the extent to which existing laws protecting journalistic sources could be applied to those writing Web sites.  Apple tried to force those behind an Apple fan site to reveal the sources of a product leak they had featured and, on appeal, the court refused them permission.[17]  The court said that it would not distinguish between online publishers and “traditional” media: “if their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle and constitutionally immaterial”.


It seems possible that bloggers in some cases in the UK could get similar protection under the Contempt of Court Act 1981, where Apple would have had to show that the disclosure was “necessary in the interests of justice”.


Don’t blog someone else’s work


The public nature of blogs means that rights-holders have ready access to evidence if bloggers choose to post anything that infringes copyright.  The UK’s journalistic “fair dealing” exemptions may apply, provided that bloggers are posting for the purposes of criticism and review and identify their sources.  However, reproduction of large chunks of another person’s work is likely to put the blogger in a sticky position.  A blogger in the US was forced to resign when it became apparent that he had been plagiarising other people’s works without attribution.[18]


Why bother blogging then?


This article has concentrated on some of the legal issues associated with blogging, and inevitably this means addressing the risks of blogging, both for the blogger and the blogged.  But if blogs were really such a liability then nobody would be writing them.  In truth, as discussed above, most of the issues with blogging are not new or surprising – copyright infringement, breach of confidence, defamation, breach of your employment contract.  What is new is that blogs have empowered a large number of people to write and publish who have no previous experience or knowledge of the matrix of laws that affect what they write.  This explains the way the blogosphere quickly latches onto scare stories of other bloggers falling prey to what may seem a mysterious and arcane set of rules.


Our team at Mills & Reeve decided a year ago to get to grips with blogging culture, knowing the risks that exist.  We were attracted by the chance to join a growing community of bloggers – and to help carve out a space for UK legal blogs, which are still thin on the ground when compared to the US.  We launched NakedLaw[19] with the intention of forming a dialogue with others interested in technology law – and quickly found that we were receiving comments and e-mails from other lawyers, techies, academics, and commercial people taking an interest in technology issues.  Blogs are a simple and effective way of creating a distinctive Web presence and we have been delighted with the response we received.


To boldly blog where no one has blogged before


What does the future of blogging hold?  I expect the number of bloggers to carry on growing – it shows not sign of stopping any time soon – and the network of like-minded bloggers to get more sophisticated.  We have seen a gradual increase in the number of UK lawyers blogging recently – we’re a naturally risk-averse bunch, but I think people are waking up to the fact that blogs are no more risky than any other mode of publication, provided there are appropriate checks on content.  That does require some sleight of hand – flooding a piece with safety warnings and caveats rather detracts from the chatty accessibility which makes good blogs effective.  Also, like any form of media, there are good and bad blogs; a well-informed blog delivering consistently interesting, useful and probably topical content can bring good publicity whereas a badly written blog is unlikely to do its author any favours.


I am also sure that we’ll see more high-profile cases of bloggers in the courts – but this should come as no surprise when there are more and more people writing.  In the meantime, blogs are forming an exciting, accessible, dynamic resource for people across all fields, in which every reader can also be a writer.


Peter Wainman is a solicitor in Mills & Reeve’s Technology Team and specialises in IT law. He is also one of the writers of the team’s Naked Law blog:
















[15] L Pay v Lancashire Probation Service (2004) IRLR 129