BNET: What is the liability of a corporation whose employee is blogging? Robert Clothier: The issue here is the person who owns or administers the blog be responsible for what third parties say on it? Typically under the laws of defamation, the person quoting is on the hook. But Congress changed that rule for the Internet, specifically for internet service providers, which has been construed broadly. The immunity is in section 230 of the Communications Decency Act. A lot of [that legislation] has been ruled unconstitutional, but this [provision] has remained valued. There's good reason to believe that the protection would extend to blogs.
You are allowed to edit or modify the content, and that will not change the immunity. You my take content down and that will not change the immunity, so long as [the content is created] by third parties. In a real estate case, where an internet service provider provided prompts asking inappropriate questions [like the married status or race of real estate customers], the Internet service provider did not have immunity. Basically, it's a small exception to the general rule. There are some companies that are very active in promoting blogs. Other companies are much warier about it. Are they going to be responsible for what their employees say on the blogs [as part of their work responsibilities]? You bet.
BNET: Sometimes bloggers say that their writing has nothing to do with their companies, but there may be evidence to the contrary, as has been the case with VMware. How would a court make a decision on who was responsible? RC: That's going to be a real fact issue. If you're an employee working on your own time and own equipment without the permission of the employer, it has nothing to do on the employer. But if the employer does the blogging from work about work, the employer may not know about it but may still be considered responsible. It depends on whether it's in the scope of employment. That's why companies should be adopting blogging policies for their employees. They should be steering employees to be blogging on their own time on their own equipment. It's not just liability, but the employee statements could come back and harm the company in later litigation or just in PR, what people hear about the company based on what the employee says. That's a very fuzzy area about whether corporations are responsible for what employees do.
BNET: What about the status of individual bloggers? Are they considered journalists, which would raise the bar of what someone has to prove in a libel case? RC: Probably [around 35] states have shield laws. These shield laws have different definitions as to who they apply to, and this is a hot issue. Some feel that if you give [protection] to bloggers, anyone can call themselves a journalist. Many of these statutes were drawn long before blogging. There's a common law constitutional privilege; some courts are increasingly inclined to rule that there is no such privilege. There is precedent in federal courts at least that a blogger qualifies as a journalist for the privilege that Crouch is likely to assert [to protect sources]. The first battle he'll fight is if he qualifies as a journalist. The second question is how broadly it applies. This privilege is strongest if you have a confidential source. The plaintiff will have to show that he really needs [the information] and can't get it from anywhere else.
BNET: Can employees be considered journalists in their blogging activities? RC: I can see the argument that if it's an employee and the blogging is within the employee's work, then the employee is not a journalist. I can't say that I've seen a case that addresses that issue. The other interesting twist in some of these [situations] is when an anonymous blogger writes something that someone else thinks is defamatory. Mayor John Smith sees a blog that says he's a lying, cheating, corrupt politician, but this guy is anonymous. This is another cutting edge area of law. You can't sue the blogger, because you don't know who the blogger is. So the plaintiffs sue a John Doe and then issue a subpoena to the Internet service provider and say give it over to me. Usually [the ISPs] don't care; they don't want to fight these battles. But the anonymous bloggers can assert rights. There is a first amendment right to anonymous speech. The ISP notifies the anonymous blogger and says they're trying to get your identity, we won't fight it, but you can fight it anonymously by hiring a lawyer. The courts might say we're going to permit this anonymity to be lifted. By and large, in as simple terms as possible, courts will say if the plaintiff can show it has a prima facie case, a good claim that would survive a motion to dismiss, they will permit the blogger to be unmasked. But there are subtle differences between courts around the country. There is no uniformly accepted test.
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