To blog or not to blog?

February 6, 2007

In the beginning, blogging was seen as a way for cybergeeks to express their opinions on all manner of subjects. Now blogging is part of mainstream society. Even the BBC, the grand dame of the British establishment, has recently launched a weblog for its news editors. Traditionally, blogs functioned as online diaries but are now used in all manner of ways including providing topical commentary or news.

The business community have jumped on the blogging bandwagon by using blogs as a means of "getting around the filter" and pushing messages directly to the public and their customers. For example, Benetton, the clothing manufacturer and fashion label, sponsor the blogsite which encourages blogging on themes associated with Benetton’s brand. Drapers, the weekly magazine for the fashion industry, have also launched a blogsite at

The attraction of blogging is that the author can create an online alter-ego. This new online personality encourages the author to communicate more freely and, perhaps, say things that one wouldn’t say in the real world. But the same legal rules apply and not respecting these rules or failing to take steps to address them, can open up bloggers, website operators and employers to unwanted legal liability. So what are the legal risks?

Using someone else’s work

Literary, musical and artistic works are protected by copyright laws. If you do not have permission to reproduce the work, you should not be using the work as the copyright owner may be entitled to claim damages from you. There are certain limited exceptions where you may not need the permission of the copyright owner. In the context of blogging the most relevant are use of a work for criticism or review or reporting current events. These exceptions are limited in scope so need to be used with care.

There are also rules which restrict the use of trade names, marks and brands. Again, permission should be sought from the brand owner unless you are certain that you are using the brand in a way that does not infringe the owner’s rights.   
Be careful what you say

Libel laws apply equally to the statements made on a website as they do to statements made in any other medium. A defamatory statement is one which tends to lower the claimant in the estimation of right-thinking members of society generally.   A statement is not defamatory if the author can prove the truth of the statement. There are also limited defences available such as fair comment.
Recently, the High Court awarded a former parliamentary candidate £10,000 damages for defamatory statements published on an internet bulletin board. Care should therefore be taken when writing blogs, particularly where a member of the public is being criticised.

Employee bloggers

With work forming such a major part of a person’s life, it is safe to assume that the subject of work and fellow employees will eventually surface in a blog.   There have been many recent examples of employers running into trouble with employee bloggers. The US-based blogger known as the “Queen of the Sky” was dismissed from her job as a flight attendant for Delta when she appeared in her uniform on her blog. The resulting media frenzy – she was on national television and several radio shows as well as being featured on the BBC – led to unwanted publicity for Delta. In the UK, a similar incident occurred at Waterstones, the book publishers.

There can be serious downsides to blogging for employers; negative publicity, interference with work and the disclosure of confidential information. It is difficult for employers to stop their employees blogging but employers are slowly realising that blogging needs to be addressed and regulated. The staff handbook or the IT and communications policy should be updated to include guidelines for blogging. Alternatively, some employers are implementing specific blogging policies to set out parameters in which employees can refer to their work-life in their blogs. The disciplinary procedure for breach of these policies should also be clear. The introduction of new policies or changes to existing policies needs to be clearly communicated to staff.

Audience participation

One of the reasons why blogging has proved so popular is because a blog encourages audience participation. But who is legally responsible if a reader posts a libellous comment on a blogsite, for example. The reader or the blogsite operator? Ultimately, it will be the reader. But, the operator may also be responsible unless he can show that he was has a defence under the Defamation Act or the Ecommerce Regulations.

In relation to libellous statements, operators may have the benefit of the “innocent dissemination defence” where they are not the authors or publishers of the statement. Whether the defence is available will depend on a number of factors such as whether the operator exerts some kind of editorial control over the posting.   The Ecommerce Regulations also contain more general defences against legal actions for displaying unlawful content. However, these defences are only available where the offending content is removed as soon as the operator knows about it.

If you are encouraging audience participation on your blog or website, then you do need to ensure that you operate an effective notice and takedown procedure. An important part of this is making sure that users and contributors are aware of your policy on blogging and the actions that you will take if a user posts unlawful statements. For example, you may need to pass a bloggers details to third parties in connection with legal proceedings. This is something that is easily covered in your website policies and terms and conditions.

If one looks at the today’s teenagers (who will make up the workforce of tomorrow), it is clear that blogging is here to stay.   Blogging is therefore something that needs to be addressed from the perspective of the website operator and the employer. If you are operating a website that publishes blogs or hosts blogs, take care with the blogs you publish and ensure participators know about your blogging policy. If you are an employer with employees who might blog, make sure that your employees are clear about what they can and can’t say online.

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