[Paleopsych] NYT: When the Blogger Blogs, Can the Employer Intervene?

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NYT: When the Blogger Blogs, Can the Employer Intervene?
http://www.nytimes.com/2005/04/18/technology/18blog.html
April 18, 2005

When the Blogger Blogs, Can the Employer Intervene?

    By [1]TOM ZELLER Jr.

    There are about 10 million blogs out there, give or take, including
    one belonging to Niall Kennedy, an employee at Technorati, a small San
    Francisco-based company that, yes, tracks blogs.

    Like many employees at many companies, Mr. Kennedy has opinions, even
    when he is not working. One evening last month, he channeled one of
    those off-duty opinions into a satiric bit of artwork - an
    appropriation of a "loose lips sink ships" World War II-era propaganda
    poster altered to provide a harsh comment on the growing fears among
    corporations over the blogging activities of their employees. He then
    posted it on his personal Web log.

    But in a paradoxical turn, Mr. Kennedy's employer, having received
    some complaints about the artwork, stepped in and asked him to
    reconsider the posting and Mr. Kennedy complied, taking the image
    down.

    "The past day has been a huge wake-up call," Mr. Kennedy wrote soon
    afterward. "I see now that the voice of a company is not limited to
    top-level executives, vice presidents and public relations officers."

    As the practice of blogging has spread, employees like Mr. Kennedy are
    coming to the realization that corporations, which spend millions of
    dollars protecting their brands, are under no particular obligation to
    tolerate threats, real or perceived, from the activities of people who
    become identified with those brands, even if it is on their personal
    Web sites.

    They are also learning that the law offers no special protections for
    blogging - certainly no more than for any other off-duty activity.

    As Annalee Newitz, a policy analyst with the Electronic Frontier
    Foundation, a digital rights advocacy group in Washington, put it,
    "What we found is there really is quite a bit of diversity in how
    employers are responding to blogging."

    A rising tide of employees have recently been reprimanded or let go
    for running afoul of their employers' taste or temperament on personal
    blogs, including a flight attendant for [2]Delta Air Lines who learned
    the hard way that the carrier frowns on cheeky photos while in uniform
    and a [3]Google employee who mused on the company's financial
    condition and was fired.

    Some interpreted these actions as meaning that even in their living
    rooms, even in their private basement computer caves, employees are
    required to be at least a little bit worried about losing their jobs
    if they write or post the wrong thing on their personal Web logs.

    "I would have expected that some of the louder, more strident voices
    on the Internet would have risen up in a frenzy over this," said Stowe
    Boyd, the president of Corante, a daily online news digest on the
    technology sector. "But that didn't happen."

    In Mr. Boyd's opinion, everything about what Mr. Kennedy did was
    protected speech. The use of trademarks was fair use in a satirical
    work, Mr. Boyd said, and it seemed unlikely that the company would be
    somehow liable for the off-duty actions of an employee, as Technorati
    executives argued. It was, in Mr. Boyd's eyes, an indication that
    corporate interests were eclipsing individual rights.

    "I don't know what else to say," he declared. "I'm astonished."

    But Ms. Newitz and others have cautioned that employees must be
    careful not to confuse freedom of speech with a freedom from
    consequences that might follow from what they say. Indeed, the vast
    majority of states are considered "at will" states - meaning that
    employees can quit, and employers can fire them, at will - without
    evident reason (barring statutory exceptions like race or religion,
    where discrimination would have to be proved).

    "There really are no laws that protect you," Ms. Newitz said.

    Martin H. Malin, a professor of law and director of the Institute for
    Law and the Workplace at the Chicago-Kent College of Law, said there
    were only a few exceptions.

    "It depends on what the blog is," he said, "what the content is, and
    whether there's any contractual protection for the employee."

    Those who work for the United States Postal Service, for instance, or
    a local sanitation department may have some special blogging
    privileges. That is because, depending on the circumstances, the
    online speech of public employees can be considered "of public
    concern," and enjoys a measure of protection, Professor Malin
    explained.

    Employees protected under some union contracts may also be shielded
    from summary dismissal for off-duty activities, at least without some
    sort of arbitration. "Lifestyle law" trends of the late 1980's and
    early 90's - sometimes driven by tobacco and alcohol lobbies - created
    state laws that protected employees from being fired for engaging in
    legal, off-duty activities, though no one is likely to be fired simply
    for blogging, but rather for violating some policy or practice in a
    blog.

    And bloggers who are neither supervisors nor managers and who can
    demonstrate that they are communicating with other workers about
    "wages, hours or working conditions" may warrant some protection under
    the National Labor Relations Act, Professor Malin said - even in
    nonunion enterprises.

    None of this, of course, answers the question of where the status of
    employee ends and that of private citizen begins.

    Some companies, like [4]Sun Microsystems, have wrapped both arms
    around blogging. Sun provides space for employees to blog
    ([5]blogs.sun.com), and while their darker impulses are presumably
    kept at bay by the arrangement, there are hundreds of freewheeling and
    largely unmonitored diaries supported by the company.

    [6]Microsoft, too, has benefited from the organic growth of online
    journaling by celebrity geeks now in its employ, like Robert Scoble,
    whose frank and uncensored musings about the company have developed a
    loyal following and given Microsoft some street credibility.

    But other companies are seeing a need for formalized blogging
    policies.

    Mark Jen, who was fired from Google in January after just two weeks,
    having made some ill-advised comments about the company on his blog
    (Google would not comment on Mr. Jen's dismissal, but confirmed that
    he no longer works for it), is now busy helping to draft a blogging
    policy for his new employer, Plaxo, an electronic address book
    updating service in Mountain View, Calif.

    "It was a very quick education for me at Google," Mr. Jen said. "I
    learned very quickly the complexities of a corporate environment."

    With Plaxo's blessing, Mr. Jen is soliciting public comment on the new
    blogging policy at [7]blog.plaxoed.com.

    Most of the points are the kinds of common-sense items that employees
    would do well to remember, particularly if they plan on identifying
    themselves as employees in their blogs, or discussing office matters
    online: don't post material that is obscene, defamatory, profane or
    libelous, and make sure that you indicate that the opinions expressed
    are your own.

    The policy also encourages employee bloggers to use their real names,
    rather than attempting anonymity or writing under a pseudonym.

    Bad idea, according to the Electronic Frontier Foundation.

    Two weeks ago, the group published a tutorial on "how to blog safely,"
    which included tips on avoiding getting fired. Chief among its
    recommendations: Blog anonymously.

    "Basically, we just want to caution people about how easy it is to
    find them online," Ms. Newitz said, "and that they are not just
    talking to their friends on their blogs. They're talking to everyone."

    But does that means that Mr. Kennedy, a short-timer, a product manager
    and by no means an executive at Technorati, carries the burden of
    representing the company into his personal blog?

    Technorati's vice president for engineering, Adam Hertz, responded:
    "It would be antithetical to our corporate values to force Niall to do
    anything in his blog. It's his blog."

    Yet with the spread of the Internet and of blogging, Mr. Hertz said,
    it would be foolish for companies to not spend some time discussing
    the art of public communications with their employees, and even train
    and prepare lower-level staff for these kinds of public relations
    situations.

    That said, Mr. Hertz stressed that the company had no interest in
    formalizing any complicated policies regarding an employee's
    activities outside the office.

    "I had a high school teacher," he recalled, "who used to say 'I have
    only two rules: Don't roller-skate in the hallway and don't be a damn
    fool.' We really value a company where people can think for
    themselves."

References

    1. http://query.nytimes.com/search/query?ppds=bylL&v1=TOM%20ZELLER&fdq=19960101&td=sysdate&sort=newest&ac=TOM%20ZELLER&inline=nyt-per
    2. http://www.nytimes.com/redirect/marketwatch/redirect.ctx?MW=http://custom.marketwatch.com/custom/nyt-com/html-companyprofile.asp&symb=DAL
    3. http://www.nytimes.com/redirect/marketwatch/redirect.ctx?MW=http://custom.marketwatch.com/custom/nyt-com/html-companyprofile.asp&symb=GOOG
    4. http://www.nytimes.com/redirect/marketwatch/redirect.ctx?MW=http://custom.marketwatch.com/custom/nyt-com/html-companyprofile.asp&symb=SUNW
    5. http://blogs.sun.com/
    6. http://www.nytimes.com/redirect/marketwatch/redirect.ctx?MW=http://custom.marketwatch.com/custom/nyt-com/html-companyprofile.asp&symb=MSFT
    7. http://blog.plaxoed.com/