News & Resources

Blogging A World Audience, And A World Of Potential Problems

Andrew B. Lustigman • Jonathan Ezor
DMNews

Source: DMNEWS

One of the fastest-growing uses of the Internet over the past few years has been blogging. A shortened form of "Web logging," blogging has evolved far from its origins as a way to post an online diary. Today, journalists, academics, pundits and companies publish blogs on every topic imaginable, and search engines specific to blogs (e.g. http://www.technorati.com; http://blogsearch.google.com) allow readers to find writers and content they prefer.

Companies are increasingly relying on blogs to generate interest in their products, services and companies, albeit utilizing different approaches. One of the most successful blogs is that offered by Microsoft, in which a Microsoft employee provides supposedly honest takes regarding the company's products and services. Juxtapose this approach with that of Wal-Mart, in which all blog comments are pre-screened resulting in the posting of practically unanimous positive statements about the company, at the expense of purported free expression.

From a legal perspective, blogs pose novel issues and challenges to marketers and businesses. As with any online content, blogs reach the entire world, so there are potential legal problems literally everywhere. This is not just hypothetical. In the defamation context, instances in which authors of online content in one country have been successfully sued in another country, and while the best known case (an Australian case against U.S.- based Dow Jones) did not involve blogging, the principles are identical. Similar foreign laws, especially intellectual property laws (copyright, trademark, etc.), apply to blogs as to other online and offline media, and different countries may have different legal regimes with which a blogger might have to comply.

Another legal question is whether, at least in the U.S., is whether bloggers enjoy the same First Amendment protection as do print journalists. Recent trade secret lawsuits brought by Apple Computer against Apple tracking Web sites' blog posts revealing Apple's upcoming products have highlighted the issue of whether bloggers are journalists, and many civil libertarians have weighed in. At the same time, blogs are being used to break stories, and many journalists themselves maintain or contribute to blogs (such as MSNBC's Keith Olbermann), further confusing the issue.

One group that has grown increasingly concerned about blogging and legality is the employers of bloggers. One issue that arises is whether a claim made in a blog constitutes advertising? For example, what if an employee of a company makes a claim about a product that is false or deceptive? Or, if an employee criticizes the performance of a competitor's product or service on a company-sponsored blog, will the company have liability under unfair competition laws or be investigated by regulatory authorities?

Where bloggers are writing for themselves and not as part of their employment, mentions of the company in the blog or even photographs can lead employers to discipline or even terminate the employee. In October 2003, Michael Hanscom, a temp at Microsoft, lost his position there after he posted a photo of Apple Macintosh computers arriving at a Microsoft loading dock. In February 2005, a Google employee named Mark Jen was terminated for posting his thoughts about his employer, soon after a veteran Delta flight attendant named Ellen Simonetti lost her job over her own blog posts. Beyond criticism of employers, employee bloggers may inadvertently or intentionally post company secrets, violate others' intellectual property or privacy rights (through the posting of photos or other media files), or merely waste company time, all of which may cause their bosses' problems. (Of course, employers should not ignore the PR issues of firing a blogger who can "fire back" via a posting on the Internet when crafting an appropriate response to a blogging worker.)

Beyond the above, bloggers can run into legal and other risks through the posting of personal information in their blogs. The more a blogger tells about him or herself in the blog, the greater the possibility of, for example, identity theft using that information. Similarly, underaged bloggers (on sites like MySpace, http://www.myspace.com) can become the target of sexual predators. Blog entries may even be used as evidence in divorce and other litigation, if they reveal relevant facts. Even if blog entries are no longer up on the site, they may be archived and discoverable for years in the caches of search engines or the incredibly data-rich Internet Wayback Machine (http://web.archive.org).

While blogging can be a very personal experience, bloggers and their colleagues should not forget how widespread and findable blog entries can be. Nothing should ever be blogged that the blogger wouldn't feel comfortable shouting from the proverbial mountaintop, or engraving in stone and hanging on the wall at the office. Companies that use blogs for internal or customer communication should also check into appropriate insurance coverage for these activities. As long as these concerns are kept in mind, blogging can be a very rewarding experience for everyone involved.

Andrew B. Lustigman is a partner at Olshan. Jonathan Ezor is a professor at Touro Law Center and is special counsel at Olshan. Olshan represents direct marketers and suppliers in all aspects of their businesses. Contact them at olshanlaw.com or alustigman@olshanlaw.com.

Mail... The Medium That Delivers!

The following is a perspective by postal commentator Gene Del Polito as printed in PostCom Bulletin. The views expressed here are far from being only the author's.

Those charged with the stewardship over the welfare of the direct mail industry dread the beginning of every new legislative year. I'm somewhat undecided as to whether this time of the year should be characterized as the start of "silly season" or the start of just something stupid. For this is typically the time when those who should know better in state legislatures across the nation embark on a campaign to besmirch those who do business by mail. Usually this takes the form of legislation to limit (or cripple) the value and utility of using the mail as a means of business communication and commerce.

This year is no different. In fact, several bills already have been introduced that would require states to develop the kind of "do not mail" lists that now exist for telemarketing. The genesis of these bills is usually the same, i.e., a total ignorance of the facts versus the myths of mail's impact on the nation's forests, the environment, and the economy.

So, to help you get ready to make sure you can set the record straight with those legislators within your states who have started year off on the wrong foot, here are a few facts to keep in mind.

Mail constitutes a very small portion of our nation's solid waste. In fact, it amounts to no more than four ten-thousandths of all nonhazardous waste that finds its way to a landfill.

Millions of tons of waste paper is captured for recycling before most reaches a landfill. Furthermore, the nation's landfill capacity is not shrinking. It's growing.

No one is cutting down precious forests for the sake of "junk mail." In fact, the tress that are harvested for paper typically have been grown specifically for that purpose. In agricultural terms, they're called "tree farms."

Trees are a renewable resource. Once cut, tree farms are reforested to ensure a plentiful supply of wood pulp for paper.

Every environmental group that raises funds or communicates with its supporters does so by...you guessed it...the mail. In fact, most are major users of advertising mail to sustain their support and activities. They do so for a reason, and that is because mail is not environmentally unsound and is economically vital to our nation's well-being.

So don't get fooled by the false rhetoric. Businesses use mail largely because they know that direct mail is medium that truly delivers.

Please address all Postcom membership inquiries to: Caroline Miller at cmiller1@postcom.org

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