Tuesday, June 10, 2003

Weblog Business Strategies 2003 XIV

Hesseldahl, Howell, Palfrey, Reuben, Ringel, and Young: The Law of the Blog

Arik Hesseldahl is a senior editor for Forbes.com, Denise M. Howell is counsel for Reed Smith Crosby Heafey LLP, John Palfrey is executive director of the Berkman Center for Internet & Society at Harvard Law School, Catherine E. Reuben is a partner in Robinson & Cole LLP,
Maurice J. Ringel is founder and president of Ringel Law Group, and Mark E. Young is communications counsel for PARTNERS+simons. Here is a rough transcript of their discussion:

Mark Young: We're going to take you on a forced march through some of the legal issues. At what point in time does the power of the written word go too far? And balanced against the increasing importance of this technology as a business tool. One person said corporations should be completely hands off until something stupid happens. They also said there was no difference between a business blog and a personal blog.

You're going to understand the tort landscape from Denise Howell. We also have with us John Palfrey from academia. He's teaching cyberlaw and the global economy in fall 2003. Addressing the various advertising and marketing legal issues, we have Maurice Ringel. We also have Catherine Reuben, who's an employment lawyer. Finally, we have Arik Hesseldahl, a senior editor at Forbes.com . He's a non-lawyer.

Denise Howell: Here we are, the lawyers, to bring down the thunderclouds on all the enthusiasm. That's not necessarily the case, although there are concerns and risks around maintaining any kind of Web presence. Those concerns and risks are heightened when you look at what we've been talking about the last couple of days. When you do any Web site, you immediately go beyond the realm of what you do day to day. You're a publisher, a broadcaster. Businesses one way or another are going to need to take control of this. If you're going to compete with blogging voices, best be one.

If there are risks that exist in Web sites that are static, it's easy to see how the risks increase when you add the elements of blogging. These risks can be managed. What are some of those risks? Once you have greater employee involvement, speedier updates, enhanced interaction, and visibility, you're exposed incremently to torts and liability that you'd be exposed to with Web site in general.

Some considerations come to mind. Defamation. Libel. It's not too difficult to avoid, and we've heard about journalists self-editing so what they're posting is accurate. Corporate disparagement is just the business forum of the defamation tort. There are also first amendment issues that are pending in the Supreme Court involving Nike. Protection of corporate speech is lessen. Misappropriation can occur in a number of ways. Privacy is another consideration. Employees within companies don't have much of a privacy interest.

You can see, too, how the risks shift around a little if the corporate site is just a few internal blogs. If it's an external site with other people contributing content, then you have to be more aware of the legal issues. It's a whole different can of worms.

The only corporate Weblog policy I've seen, and it's quite a fine one, is at Groove Networks. The company has spelled out in advance what its expectations are. The other link I have up is the policy statement from Macromedia. It also is interesting in terms of how they manage risks. The laws don't go away.

Young: A new media gives people the opportunity to test the limits of the law.

John Palfrey: I'm going to take a page out of Dave Winer's book. If you want to learn what's really going on, step in the shoes of a user. I'm going to talk from the perspective of someone who's working with a lot of others to get blogs going in a university setting.

About three or four months ago, we started a blog space. It was one of those throw some spaghetti at the wall and see what sticks. One of the keys to this thing is that anyone who graduated from Harvard can get a free email address for life. That means that we could get hundreds of thousands of alumni with blogs. That's analogous to a multinational corporation.

We've learned three things. One is to watch out about becoming an ISP. If you have any Web presence at all, you are probably under some measure oof the law, an ISP. Secondly, be ready for takeoff. Third, blogs are good for the Web -- and for you.

How should we think about ourselves as we provide Web services? Looking in the US law alone, I've found seven different names for what an ISP is and eight completely different definitions. There are 31 cases in which a court is trying to define what an ISP is. Much less get into international law. There are at least 40 different ways someone can consider you an ISP. My only answer to that is hire a lawyer. The law in the US is a complete mess in the Internet space.

Two, be ready for takeoff. We launched this initiative several months ago, and we already have hundreds of blogs. Donna Wentworth does a great blog called CopyFight. She's on the Berkman staff. Chris Lydon. As soon as you make it possible for people to do this stuff, you need to be ready to take off.

The last thing, blogs being good for the Web? I am convinced that it's a good thing. When does the written word go to far? Virtually never. The answer is to push more good speech out there.

In terms of intellectual property rights, my strong recommendation is to use a Creative Commons license any chance you can. Get CC licenses into the RSS feeds so they're baked in.

What should you do if you're thinking about launching a blog initiative? One, do it. Two, hire a lawyer. And three, be clear about your copyright.

Young: Speaking of copyright, one of John's colleagues puts you on notice that anything you send to him via email can and will be used against. I want to turn to Catherine now. Dave Winer expressed yesterday quite eloquently about the internal tension here. Employers shouldn't approve every blog post, but they need to be very careful about employees' blog posts.

Catherine Reuben: There are two things to consider here. The first is an employee learning something from a blog and making a hiring decision based on that. Also in that category is an employee badmouthing an employer. People say, what about free speech? The Constitution applies to actions of the state, not of a corporation. Third, an employer sees that an employee revealed some confidential information and takes action. There was a New Jersey case in which a company was able to force an ISP to reveal the name of an anonymous posting that included confidential information. There's the issue of employees blogging on company time. We all know about that. Then there's the case in which employers see value in what's being blogged.

Employee side: Don't do it on company time or equipment, That's obvious. Don't mention your employer. Don't just put something out there. Don't sign confidentiality agreement forms when you get hired. They're overbroad. Same with the intellectual property agreements. People are routinely asked to sign those agreements. What are the dos for employees? Look at the confidentiality agreement. Look at the Internet use policy. If your job is that of an analyst or someone who creates content, get independent counsel to know what you own. And finally, if you're an employee and you want to express yourself, there are some legal ways you can do that. There's protected concerted activity. Union organizers get far more protection. There may be legal ways to do this, but it's a fine line.

My tips for employers: dos and don'ts. Do have a confidentiality agreement. Have a policy in regards to use of computer equipment and employee Web sites and blogs. Talk to your intellectual property counsel to hone down who knows what. Don'ts for employers? If you know about an employee's blog, don't access it under false pretenses. Two, get counsel before you do anything involving a blog. There are state privacy laws. There are whistle blower protections. There's old-fashioned discrimination.

Those are my dos and don'ts. It's a very exciting area.

Young: Next up is Maurice Ringel.

Maurice Ringel: I'm a lawyer. Don't let that fool you. I had a career in advertising and marketing. I've been asked to speak on one premise today. Some blogs may be considered to be a form of advertising, and to the extent they are, they may be subject to local, state, federal, and international regulations. In addition, the ad's sponsor -- the advertiser, the ad agency, the ISP -- may be subject to regulation.

The laws and regulations that may apply can come from multiple sources. It's these bodies that may take an interest in whether blogs are advertising or not. Which bodies will take an interest in enforcing their regulations against bloggers.

The laws and regulations that can apply can invoke specific requirements for compliance. This is a laundry list. Mark alluded to comparative advertising claims. Contests and lotteries. Solicitations for charities. Pricing discounts. Warranties. Guarantees. Disclosures and the standards for making disclosures. Taxation. Customs. Prohibitions. Interest rates. Truth in lending disclosures. Earlier today there was a reference to comments made by public companies. What might be considered a prospectus or a forward-looking statement?

The bottom line is that if it's an ad, it really has to comply with regulations. If I were to start a blog, it would be subject to the Grand Judicial Court of Massachusetts. I'm bringing up issues. I don't know what all the answers are. One broad solution is to use disclaimers. If I were to put up a blog, I would disclaim that it was legal advice.

Arik Hesseldahl: Let me start by stating for the record that I am not now nor have I ever been a lawyer. In fact, as a journalist, every word that I've written for my employer has been read by a lawyer. Every so often I'll get a call from our lawyer about something. Usually it's pretty small. When you're a journalist, you find that you usually don't want to hear from lawyers. Externally, it'll ruin your day real quick. It's important to be close to the internal lawyers. And if you don't have one, make friends with one that you can call real quick. It's good to know who you can call.

Not being much of a blogger myself, I've written a little bit about it. And I'm reminded of the days in which the Internet was new. A lot of the wonderful things people are saying about blogs in 2003 are the things people said about the Web in 1993 and 1994. Big media, large companies including my own, don't quite get blogging. They're eyeing it and trying to figure it out. Right now, they're more of a mind to not have anything to do with it.

There are some important legal questions that need to be worked out. Where does the public persona as a media organization begin? Where does it end? My boss produces his own Web site. He enforces all the corporate policies, but he produces his own Web site on cricket. There's not a lot of interference between his cricket site and Forbes.com. But does that mean that I can write my own personal technology column on a blog? There's a policy in place that says you don't write extra versions of articles for other publications. What goes on in the office stays in the office. Editing is not for public view.

Journalism might be the first draft of history, but that doesn't mean that blogging should be the director's cut of journalism. That also doesn't mean that blogging can't be the first draft of journalism. As a reporter, the legal issues I face apply to the blogging community. If you're going to run with the wolves and challenge the wolves, you're going to have to think about libel, slander, and fair use. I spend a lot of time looking at the Associated Press Stylebook and the legal section. At Forbes, we have a rigorous fact checking policy for the magazine, but not so much at the Web site, where we don't have as much time. Those are the legal faces that I face.

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