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Dennis M. Kennedy Dennis M. Kennedy
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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at esvenson@gmail.com.
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Between Lawyers provides just-in-time group commentary on the issues raised when technology, culture and the law intersect. We take you behind the firewalls and conference room doors to show you how experienced lawyers deal with these issues and help you prepare for the new challenges we all face. For more, see our introductory post.
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February 21, 2006

Lack of Blogging Policies for Employees Causes Employers to Grow Three Heads (and Creates Other Dangers Too Horrible to Describe)

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Posted by Dennis M. Kennedy

It's hard to believe that it was almost a year ago that we were discussing on the Between Lawyers blog a series of breathless announcements from lawyers and other pundits about the dramatic dangers for employers who did not have a "blogging policy" in place. Too many of those announcements suggested that "thou shalt not blog" was the best policy, not realizing that there might even be positive benefits of employee blogging in the sense of the Cluetrain Manifesto and other thoughtful approaches.

Concerned that the general public would see the new-found concern of lawyers as being simply a law firm marketing flavor of the day, we decided to shine a little light on the topic, cut through the hype and take an approach that focused on education rather than fear. You can find our posts on this topic in the blogging policies archive of the Between Lawyers blog. I've just read through the posts and they seem so reasonable that you may wonder if lawyers actually wrote them. There are also some great links and resources.

I think that the discussion here did some good because I didn't see any "Blogging Policy Alerts" for quite a few months after we (and others in the blog world) discussed the topic.

Well, it was a short ceasefire. A new article at Forbes.com called "Protecting Employers Against Bloggers" is a recent example of the alarms being sounded again.

I've read a whole bunch of these articles on the dire need for "blogging policies" and I'm forced to conclude that I'm just a dumb country lawyer who doesn't get what all the brouhaha is and maybe my experience as a blogger really has not given me any insights into these issues. I'm also a little more dubious of surveys than most people seem to be.

Maybe someone can help me understand why I can't understand why having or not having a "blogging policy" is such a cause for alarm.

As I see it, if you have the normal sort of well-drafted employee manual or guidelines, Internet or technology use policies and corporate communications policies, it seems like you should have blogging covered. I just cannot see how blogging raises issues that are any different from public speaking, email, websites, and even use of the telephone. In fact, if you substitute "telephone" for "blog" in the recommendations at the end of the Forbes.com article, you'll see that the same principles apply equally to telephone use.

On the other hand, if you have none of these policies, then concentrating on "blogging policies" without addressing the other policies seems a little silly.

In all events, expecting to find a one-size-fits-all policy is not a wise move. These policies need to fit your culture and the unique circumstances of your business. The Forbes.com article ends with what I believe is the most important point of all in this area (and it's not a legal one) - training. As the article says, "Employees should be trained about the existence and contents of these policies and their obligation to maintain the employer’s reputation in the community at large." Bingo. Policies without training and leadership at the top levels create their own set of problems, especially if the exercise is just to slap a "standard policy" into place.

However, I'm willing to learn where I'm missing the point. In the meantime, I recommend that you read the posts in our archive in addition to the dire warnings about blog policies that seem to be bubbling back up to the surface in recent weeks.

Comments (3) + TrackBacks (1) | Category: Blogging Policies


COMMENTS

1. Corona Sherona on February 27, 2006 6:25 PM writes...

Wow, I didn't know blogging policies were so touchy. It seems like it would only be a problem if they were blogging company secrets, or blogging rather than working to a large degree.

Permalink to Comment

2. Greg Miller on March 3, 2006 1:48 PM writes...

First, thank you for allowing me to comment on your blog post.

I largely agree with Dennis on this from the stand points of [a] not believing every survey you read; [b] having a competent use policy on all corporate assets technology or otherwise (although there are some extenuating circumstances I believe need to be thought through); and [c] making mountains out of mole hills. That said...

A. Blogs are simply a new way to illuminate a couple of persistent issues: [1] (mis)use of corporate assets; and [2] policing corporate brand

B. About those extenuating circumstances. This relates to [A][2] above, and applies more to situations practitioners may advise their clients on than to law firm blogging, but that distinction aside... the challenge is for a entity to maintain its brand image (not to mention control over wilful or negligent disclosure of confidential information, trade secrets, etc.). Herein lies the need for clear policy.

Managing what one posts on corporate-owned digital assets whether it be a list server, web site, corporate-originated email message signature line, or a blog is straight forward: employee conduct guidelines and company asset use policies should clearly address what is acceptable.

But what of the situation where the employee is participating in public discourse OUTSIDE of the Company "sphere of influence" ...say in their own blog or blogs of others, or on other web sites, or in any public discourse (letters to editors, speeches in the public square, etc.) With the exception of circumstances of public agencies, the prospective constitutional arguments are weak if not controlling at all. Does the employer have a right to manage any discourse (digital or otherwise) that may reflect on the company itself?

My Take: Employment is by and large, at will, absent an employment contract, and there should always be clear guidelines on acceptable employee conduct. So an Employee Conduct Guideline might restrict communications of all forms (i.e., blogging included) on matters of the Employer or representing the Employer in any communications.

Yet, this has to be balanced with the good that can come from tolerating employees blogging elsewhere on the Internet WHERE ONE COULD REASONABLY CONCLUDE THE BLOGGER IS OR NOT SPEAKING ON BEHALF OF THEIR EMPLOYER (unless otherwise disclaimed), outside of their corporate blog.

WHY is this important, and what might the issue be? Allow me to speak from the POV of some painful lessons learned in days gone by. I can go into details on specifics off line, but I point out here that any PUBLICLY TRADED COMPANY has an additional responsibility to police outbound communications for a variety of reasons; some regulatory in nature. Once upon a time, this nearly cost me my job at Netscape Communications over a flap (that in retrospect was funny) involving a list server posting where there are a perception of some privacy in content, and an editor who decided to take the posting and make it part of an article.

Forget my own experiences; the stories are legion of (for example) two employees sitting together on a flight and discussing corporate matters overheard by the sotck analyst in the seat behind them, who then immediately calls in a sell order, or the competitor at the next table over in the restaurant who.... you get the idea. The point is, I think we can all agree there are clearly interests vested in the company in managing information flow. But, I digress...

[C] Back to policing corporate assets. This thorny problem continues to snag many employers. Again, we saw this issue at Netscape years ago. Remember the early adoption days of the web and how employees at Netscape were allowed to have their individual web pages and the blow up over controversial content once the company went public? The challenge was (and still is) to strike a balance between providing what amounts to an employee benefit, and yet managing the corporate assets (bandwidth, servers, disk space, etc.) It goes back to the issues over taking a company pencil and note pad home, or borrowing the photocopier to copy your tax return, or using the Fax machine, the telephone to talk to friends, or (today) the computer to shop at Amazon.Com on your lunch hour or monitor eBay bids all day long.

This all (and Blogging has simply awoken the beasty issues)... goes back to having clearly articulated "Acceptable Use" Policies and "Employee Conduct" Guidelines.

Like it or not, the fact is, the employer has acquired those assets in order to conduct business, not purely as employee benefits. And yet some balance between the two interpretations is obviously required.

In the end, is there an issue worth the bandwidth about policies for blogging? To an extent, yes. And as Dennis points out, we simply need to incorporate yet another technology under the umbrella of best practices for managing corporate asset use and employee conduct guidelines.

There are a couple of things worth thinking about:

1. to what extent can an employer control or set the guidelines for conduct of an employee, especially outside the work place? (AND PONDER THIS: the "work place" is now "virtual"...)

2. what should be the best practices in a digital age for [a] use of corporate assets for personal consumption, and [b] managing employee conduct to the extent necessary to protect corporate communications interests and "brand" (image, etc.)

3. the rights and responsibilities for a corporate entity to "police" its brand and those events that can (adversely) affect their image or standing.

I close with one of my faovrite sig lines I use to have to add to every outbound e-Mail or post to USENET because Iw orked for a publicly traded company many years ago and sign out here.

Cheers
Gregory Miller
Managing Director; General Counsel
Network Tool & Die Co LLC -- Venture Catalysts & Advisers
_______
I don't speak for my employer, and it doesn't speak for me; kind of a nice arrangement, actually.

Permalink to Comment

3. Ian Thorpe on May 19, 2006 12:24 PM writes...

Before blogging was thought of, back in the days when "the internet" was something for serious minded academics and professionals I, as a consultant, was trying to reorganise a dysfunctional I.T. department.
I noticed a young programmer who seemed very diligent, working through his lunch, staying late, always busy. As this is very unusual in young programmers I took an interest. Turned out he had been programming a moving picture of a Rolex watch face for the best part of six weeks. (He got it wrong, his seconds hand swept rather than stepping so what he had programmed was a cheap fake you can buy in the street market for £10; poor value for a month and a half's salary I think.)
Computers bring out the arrested adolescent in most young men. That is why companies need blogging policies.

Permalink to Comment

TRACKBACKS

Listed below are links to weblogs that reference Lack of Blogging Policies for Employees Causes Employers to Grow Three Heads (and Creates Other Dangers Too Horrible to Describe):

Dennis Kennedy posts on the rash of articles and lawyers’ promotional pieces pitching the need for blogging policies. Here in Canada too. Human sacrifice, dogs and cats living together - mass hysteria, indeed. ... [Read More]

Tracked on February 21, 2006 11:49 PM

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