Legal risks of corporate blogging and user-generated
content
This guide is based on UK law. It was created in February
2007.
This guide focuses on companies that have staff who run a blog
for the company. Many of the issues raised are common to all
user-generated content sites.
Links on this page:
Corporate blogging: an introduction
Many major companies have seized the opportunities presented by
blogging. They have recognised the benefits which internal
blogs bring to communication and culture across a
corporation, or in the case of external corporate
blogs, the scope for improved marketing, branding and PR.
High profile users of corporate blogs include: General Electric,
McDonald's, PwC and Time Warner. In Sun Microsystems, the CEO and the General Counsel are among the
company's 2,000 bloggers. IBM has even more.
Corporate blogs can be an effective means of
providing commentary or news on a company and its products. The
instantaneous nature of blogging can allow companies to react
quickly to breaking news stories, helping them to manage publicity,
both good and bad. Blogging is also seen as a way of humanising a
company, allowing the personality of employees to emerge in an
informal setting.
The best-known example of how a blog can improve
a company's image is Robert Scoble's Scobleizer blog, begun when Scoble was
an employee of Microsoft. He is credited with changing the public
view of Microsoft by his blogging on life and events inside and
outside Microsoft, becoming its unofficial corporate voice.
Scobleizer is widely seen as helping to humanise Microsoft and
shift its stance from arrogant and aloof to one which is more
inclusive and accepting of criticism. One of the keys to achieving
this softer image was Scoble's neutrality and readiness to point
out Microsoft's mistakes, as well as praise for its rivals. (Scoble
has since left Microsoft for a start-up, but continues
Scobleizer).
In contrast, a blog created by Vichy, a division
of cosmetics giant L'Oreal, initially backfired. The blog was part
of a marketing campaign for a new anti-ageing product. It was based
on the diaries of a flawless-looking character called Clare who
lamented the onset of age. Clare's youthful looks turned out to be
too good to be true: Clare was a character invented by the
advertising agency. Vichy narrowly escaped a PR disaster by
admitting its mistake, apologising and introducing the real Vichy
team. Customers were invited to post unedited comments about their
experiences of the Vichy product on the blog.
These two examples demonstrate one of the keys to
successful corporate blogging: authenticity. The blog posts must be
genuine – a key part of blogging's success has been the fact that
people believe it side-steps the "spin" that permeates marketing
material, or the reporting of news. The authors must also be
allowed at least a degree of autonomy in generating and selecting
content. However, in fostering authenticity in a blog companies
undoubtedly introduce risks to the process.
Risks of corporate blogging
The main risks of external corporate blogging
(some of which will be common to internal blogging) are:
- Damage to an individual's or company's
reputation. This typically arises if a blogger says
something which tarnishes the reputation of the company in the eyes
of the reader. It could be an inappropriate comment, or it could be
that they criticise the company directly.
- Liability for infringement of
intellectual property rights. The biggest risk here is
that the blogger copies content for the blog post from another
source without permission. It could be that they copy the text of
an article, or include a photograph or logo belonging to another
party.
- Liability for defamation or illegal
content. Defamation is perhaps one of the greatest risks
to corporate blogs – especially if authors are given a free reign.
It is probably natural that employees would want to put down the
competition, and fair comparisons are fine. The risk arises when
authors cross the line, and opinion becomes defamation.
- Leaking confidential
information. Internal losses are as much of a concern as
external liability. Not all employees will realise what is and is
not appropriate to disclose – meaning that confidential information
can easily leak out of the business. This could be details of a new
product launch, or disclosure of poor financial figures. Commercial
damage and breach of insider trading rules are just two of the
risks.
- Harassment. Employers have a
duty to protect all of their employees, so it is important that
blogs are not used as a way of harassing others. The employer could
become liable for allowing one employee's blogging to amount to
harassment of another.
- Failing to recognise a statutory
grievance. A statutory grievance is any complaint which is
capable of forming a claim before an employment tribunal, discussed
further below.
Liability may arise from content posted by the
company's employees or, where a site is more widely accessible,
from comments posted by members of the public using the
website.
A company's risks and exposure to liability will
depend on the type of blog which the company operates and the
capacity in which its employees are posting to that blog.
A company may set up a blog as a marketing tool,
under which employees post material during the course of their
employment, in their capacity as employees of the company and on
behalf of the company. In this case the company and the employee
will be treated as one and the same and the company will be
responsible for the statements made by the employee as if
they had been made by the company itself. This is vicarious
liability. It makes the employer liable for the actions of its
employees made in the course of their employment.
Some companies provide employees with the ability
to create individual blogs, without them being specifically tied to
a particular product or marketing campaign. IBM, for example, has
over 3,000 employees who blog. Many of them use their blogs to
explain a technology they are working on or to discuss issues faced
by the business. Others simply use their blogs to comment on the
state of the industry, or to discuss day-to-day aspects of their
jobs. These type of blogs aren't typically used by the company to
promote any particular products. However, like the Scobleizer blog,
they can help generally improve the image of the company.
In these situations, even though the employee
isn't writing "on behalf of the company", the fact that the blog is
hosted or funded by the company may still make it
liable for the content of the posts. Of course, this
raises some difficult practical issues: no company has the resource
to supervise 3,000 blogs. This is when good operational policies
and effective employment controls will become crucial.
It is possible that an employee could make what
is known as a statutory grievance whilst blogging
which would require the employer to follow the statutory grievance
procedure. This is most likely on an internal blog – i.e. one used
and read only by staff. A statutory grievance is any complaint
which is capable of forming a claim before an employment tribunal
when it has been put in writing and sent to the employer. This
definition of a statutory grievance was drafted very widely in the
legislation and has been interpreted very widely by employment
tribunals largely on policy grounds as an individual can be barred
from bringing a claim if they have not first raised a grievance
internally.
Arguably if an employee posts a complaint on an
internal corporate blog which relates to an unlawful act, such as
discrimination or bullying, then this could amount to a statutory
grievance, which has been sent to the employer when posted on the
blog. The employer would then be required by law to invite the
employee to a meeting to discuss the grievance, within a reasonable
time. Following the meeting the employer is obliged to write to the
employee communicating the outcome of the meeting or any decision
reached. The employee must also be offered an appeal against any
decision. The employee is entitled to be accompanied to both the
grievance meeting and the appeal by a trade union representative or
a workplace colleague.
If the employer misses the very existence of the
statutory grievance, because it does not monitor the content of the
blog and an employee subsequently took a case to an employment
tribunal and was successful the tribunal must award an
uplift in damages of between 10% and 50% for the
employer's failure to follow the statutory procedure.
It would be advisable for companies who do
provide an internal blog, or other internet-based technology where
employees can post individual comments, to make it clear that this
is not the appropriate forum for raising a grievance and that the
company's internal grievance procedure should be used instead. A
notice on the blog would be appropriate.
However, this issue has never been tested before
a court or tribunal. There is still a risk for employers that they
become liable where an employee chooses to raise a grievance via
the internal blog. Therefore, cautious employers will either
monitor internal blogs or forbid them. Monitoring a blog can raise
other issues: the monitoring of all internet-based communications
should only take place with the knowledge of employees. Employers
should familiarise themselves with the Employment Practices Code, which
deals with monitoring of communications.
Starting a corporate blog
If you are starting a corporate blog, you must
decide who will contribute and when. Will it be someone's full-time
job? Or, more likely, will it be something they do in addition to
existing duties? Choose your bloggers carefully:
they will be representing your organisation.
While this guide is all about helping you to
understand and manage the legal risks, bear in mind also that
good blogs thrive on spontaneity and they can
suffer if each posting has to be approved by a manager. If
supervision isn't possible or appropriate, or you think it might
stifle content, then a buddy system may be a
suitable compromise: before posting anything, the author checks his
posting with a fellow blogger in your organisation. Lastly,
remember that blogs are easy to start and difficult to
maintain: do not underestimate the drain on resource that
they can present.
Staff should be given guidance as to what the
business considers appropriate blogging, which could take the form
of a blogging policy.
Some of the issues that you might want to address
in such a policy include:
- How much time can be spent blogging? How should
staff balance this with the performance of other duties?
- Remind bloggers that they act as representatives
of your company, albeit they write in their own names.
- Warn against posts that could potentially offend
readers (e.g. obscene, threatening, abusive, sexually or racially
offensive material).
- Forbid posting anyone else's content without
permission.
- Forbid posting anything that is confidential to
the company. Guidance may be necessary – e.g. financial information
or information about future projects.
The policy should also set out some guidance as to
how blogs should be managed internally. This might include details
of who the blogger should approach if they have any questions about
whether particular content is suitable, what the blogger should do
if they receive a complaint, and what they should do if they are
concerned about the content of any comments posted to the blog.
The Terrorism Act
The Terrorism
Act 2006 creates offences relating to the encouragement of acts
of terrorism and the dissemination of terrorist publications. The
Act has potentially serious implications for companies or
individuals hosting electronic media, whether in text or multimedia
form.
It contains a notice and takedown regime that
applies to website operators. A police constable may serve a notice
requiring the modification or removal of offending material
within two days.
The effect of any failure to remove or modify the
materials within the two-day period, in the absence of "reasonable
excuse," is that the service provider will be deemed to have
endorsed the offending materials and faces a maximum penalty of
seven years in prison.
The notice and takedown regime also applies to any
"repeat statement" which "is for all practical purposes, to the
same effect as the statement to which the notice related". The
two-day time limit for removal of the statement will begin to run
from the date of re-publication.
The Act says a person is not deemed to endorse a
repeat statement if he "is not aware of the publication of the
repeat statement" or where he has taken "every step he reasonably
could to prevent a repeat statement" becoming available to the
public. However, the explanatory notes to the Act provide no
guidance as to what is reasonable for the host of a website, blog
or message board.
Technically, you could block postings from a
particular username and IP address; you could also monitor for the
use of particular phrases that might constitute a repeat statement.
If a site finds itself subjected to the Terrorism Act's notice and
takedown regime, it would be advised to discuss its method of
operation and proposals for preventing repeat statements with the
police.
Intellectual property infringement
This section sets out the basics of copyright
and trade mark infringement: how another person's copyright or
trade marks can be infringed, and the remedies which are available
to them for infringement.
Where a party's intellectual property rights
are infringed it can bring a claim for damages or, in certain
circumstances, seek a share in the profits which resulted from the
infringement. The owner of the intellectual property rights may
also be able seek an injunction to prevent further misuse of its
intellectual property rights (e.g. injunctions which permit the
seizure of infringing goods).
Trade marks
Care must be taken if the author of a blog
wishes to refer to a third party's trade marks, since this carries
with it a risk of infringing trade marks.
Trade mark law in the UK is governed by the
Trade
Marks Act 1994. A registered trade mark is infringed if,
without the consent of the proprietor, a person "uses in the course
of trade a sign which is identical with the trade mark in relation
to goods or services which are identical to those for which it is
registered". It is also an infringement to use an identical trade
mark in relation to similar goods and services, and a similar trade
mark in relation to identical or similar services provided, where,
in each of these two cases, there exists a "likelihood of
confusion".
In many cases, reference in a blog to a third
party trade mark will not amount to use "in the course of trade" or
"in relation to" the goods or services for which the mark is
registered. If the words "Coca Cola", for example, are used in a
blog discussing the merits of various brands of fizzy drinks and
the blogger is not using the blog as a way of advertising his
services as a manufacturer or retailer of fizzy drinks then, even
if the use of the trade mark is somehow "in the course of trade",
it is unlikely to be "in relation to" any trade in the goods for
which the Coca Cola trade mark is registered.
On the other hand, if the reference to "Coca
Cola" were included in a blog operated by or associated with a
rival fizzy drinks manufacturer, then the position would be likely
to be different and the blogger would need to avail himself of one
of the exemptions from trade mark infringement, such as the
exemption for use in relation to the "genuine" goods of a trade
marks proprietor. This is allowed provided such use is "in
accordance with honest practices in industrial or commercial
matters". Thus if a Pepsi corporate blog wished to refer to Coca
Cola in a discussion of the relative merits of the two products (by
way of a form of comparative advertising) it would have to ensure
that the comparison was entirely fair in order to avoid infringing
Coca Cola's mark.
See also: Legal info about trade
marks
Passing off
Even if there is no infringement of a
registered trade mark, bloggers referring to third parties need to
ensure they are not liable for "passing off".
This can occur if the following ingredients
are present:
- a misrepresentation;
- made by a trader in the course of trade;
- to his prospective customers or consumers;
- which is calculated to injure the business or
goodwill of another trader (in the sense that it is a reasonably
foreseeable consequence); and
- which causes actual or likely damage to the
other's business or goodwill.
This might arise if a trader's blog included
reference to a third party brand in such a way that a reader of the
blog might mistakenly believe that the trader's product, or the
blog, in some way originated from or was associated with or
approved by the third party, resulting in actual or potential loss
of business (for example by the diversion of customers) or damage
to reputation (through, for example, association with the views
expressed in the blog).
Copyright
Copyright protects 'original' works expressed
in a variety of material forms. The expression of an idea is
eligible for copyright protection but the idea itself is not unless
and until it is expressed.
As such copyright protects literary, dramatic,
musical and artistic works, databases, recordings, films,
broadcasts, cable programmes, typographical arrangements of
published editions, digital works computer programs and the
preparatory materials used in creating them.
Because of the different types of material
which copyright protects, it is possible for there to be different
copyrights existing in respect of the same work. For example, a
song will involve separate copyrights in the music, lyrics,
recording and performance of it, and each of these copyrights may
be owned by a different person.
Copyright law in the United Kingdom is
governed by the Copyright
Designs and Patents Act 1988 (the CPDA) and allows the author
of a work to control the copying or exploitation of the work. UK
copyright protected work can also qualify for protection in other
countries due to a number of international treaties to which the UK
is a signatory.
The material which is posted onto a blog can
come from a variety of different sources. In most instances it is
written by and originates from the person who posted the material
on the blog. However sometimes that person may copy content,
graphics or music across from another website, or take it from
another source altogether such as a book or magazine. It is likely
that this content will be copyright protected: for example, the
content of another website will consist of text, photographs,
graphics (including logos), sounds, films and databases, which as
indicated above attract copyright protection.
Copyright automatically comes into existence
when a work is recorded in some way, such as in writing or when it
is drawn onto paper. Do not make the common mistake of
thinking a work is 'public domain' or free to copy just
because there is no copyright symbol (©).
A work must be original in order for copyright
to exist in it. However, in the UK, the threshold for originality
is not high: the work must not be a copy of a previous work and
must involve some skill and effort. There is no novelty
requirement, so that if two identical works are created
independently both will be entitled to copyright protection.
Fair dealing
Some copying is allowed but the examples are
limited and the exemptions should be relied upon with considerable
caution.
Under the Copyright, Designs and Patents Act of
1988, fair dealing with a work for the purpose of criticism
or review of that or another work or of a performance of a
work, does not infringe any copyright in the work provided that it
is accompanied by a sufficient acknowledgement. Sufficient
acknowledgement means that the author of the work being reproduced
must be acknowledged by name.
Criticism of a single aspect of a work (such
as a book, article or film as opposed to the work as a whole), is
capable of constituting fair dealing for the purpose of criticism
or review. The criticism and review need not be of the work in
question, but can be criticism of the ideas expressed in the work.
Thus, the inclusion of third party material in a television
documentary on the subject of "cheque book" journalism has
benefited from the fair dealing exemption, as has a television
programme criticising the decision to withdraw the film A
Clockwork Orange from circulation, which included extracts
from the film.
The exemption for fair dealing with a work for
the purpose of criticism or review cannot apply if the work being
criticised or reviewed has not yet been made available to the
public.
Fair dealing with a work – other than a
photograph – for the purpose of reporting current
events does not infringe any copyright in the work
provided that it is accompanied by a sufficient acknowledgement. No
acknowledgement is required in connection with the reporting of
current events by means of a sound recording, film, broadcast or
cable programme where this would be impossible for reasons of
practicality or otherwise.
Whether dealing is "fair" is often difficult
to judge, because there is no statutory guidance. The cases
indicate however that the test is an objective one: would a
fair-minded and honest person have dealt with the copyright work
for the relevant purposes? Ultimately, the decision must be a
matter of impression. The main factors which tend to be taken into
account in judging fairness are:
- The degree to which the alleged infringing use competes with
copyright exploitation by the owner. If the criticism or review
would act as an acceptable substitute for the original, and perhaps
deprive the owner of a sale, that will be highly relevant. The mere
existence of commercial rivalry will not be conclusive,
however.
- Whether the work has been published or not. If a work is
unpublished, the criticism or review exemption is less likely to
apply if the work which is being included has not previously been
made publicly available.
- The extent of the use and the importance of what has been
taken. No more of a work should be used than is necessary.
Occasionally it may be fair to use the whole of a very short work
(and it has been held to be fair to copy the whole of a television
programme for the purpose of then selecting from it the relevant
parts for "fair dealing".
In 1997, News Group Newspapers was sued by a
photographer, François-Marie Banier, for publishing his photograph
of Princess Caroline of Monaco without prior permission, albeit the
newspapers included an acknowledgement.
The court decided that the photograph was not
used in The Sun to review or criticise the photograph
itself; instead, it was plain copying and competing use with an
attempt to disguise it as review and criticism. The court rejected
The Sun's argument that it was common practice for
newspapers to publish photographs in the event that the copyright
owner was not contactable, with licence fees being paid
afterwards.
There are also fair dealing exemptions for
non-commercial research or private study and in relation to
educational use. These will rarely be relevant to blogs.
Contacts
See also: Legal info about
copyright
