By Bob Latham & Shannon M. Zmud
In the not so distant past, a corporation’s experience with blogs was likely limited to issuing policies regarding undesirable employee activities. But as the popularity of social media increases, companies are starting to invest in more than web services. Yes, businesses are blogging. And it’s not just the ultra-techie guys either – popular corporate blogs include Kodak’s “A Thousand Words”, General Motor’s “FastLane” and Coca-Cola’s recently launched “Coca-Cola Conversations.”
What is so enticing about the blogosphere to businesses? Instant access to customer ideas, compliments and complaints. This direct and immediate environment can, when successful, engender an intimacy with consumers never before possible (compare: corporate spokesperson armed with formal press releases). In short, a good corporate blog provides an opportunity to build trust with consumers.
Of course, corporate blogging is not without its drawbacks. Not surprisingly, a blog that is worth reading is hard work to produce. Content must be interesting, timely, pithy and unfazed by controversial postings. In addition, there are legal risks that can blindside the unwary blogger.
As lawyers, our first task is to debunk the myth that the Internet, and hence the blogosphere, is the last remaining Wild West, with no rules and no accountability. This is not true. Just as you can defame someone in a newspaper article, on a television broadcast or on a street corner distributing handwritten pamphlets, you can defame someone on a blog.
However, the feasibility of litigating over a statement made on the Web typically had one major stumbling block: the majority of content was generated by individuals, not big media outlets. This created three major hurdles at the outset: (1) you had to figure out who the publisher was – i.e., trace the ISP address; (2) you had to find out where the publisher resided – i.e., he resided in Kalamazoo; and (3) you had to assess whether it would be cost effective to sue this publisher – i.e., it turned out to be a 13-year-old with puny, insignificant purse strings.
Of course, corporate blogs will suffer none of these difficulties. Deep pockets will once again be readily identifiable for content that is believed to be defamatory, an invasion of privacy or a violation of copyright law. So what is a corporate blogger to do?
The best advice is to carefully consult with your attorneys and gain a good understanding of the legal framework before you set up your corporate blog. For purposes of this article, the starting point for such a discussion is Section 230 of the Communications Decency Act.
Section 230 generally provides a safe harbor for providers of interactive computer services, and it is possible for the host of a blog to be entitled to the safe harbor. Specifically, federal law immunizes a provider from being treated as the publisher or speaker of information that was provided by another content provider. If you are within the safe harbor, then you will not be responsible for inflammatory postings that members of the public may place on your site.
Staying within the safe harbor can be tricky. In order to not been seen as the author or publisher of third party content, also known as User Generated Content, bloggers generally do not make revisions to it. The only decision savvy bloggers make with regard to consumers’ postings is whether to allow it to remain up or delete it. Revising can lead to authorship, and then, responsibility.
Bloggers seeking to stay in the safe harbor do not shape or direct posts by asking questions that may lead someone to violate the law. For example, a recent decision in a case involving a roommate finder website suggested that a provider may be held responsible when it invited people to discriminate in violation of the Fair Housing Act by offering preferences based on race, etc.
The safe harbor, however, provides no protection for your original content. In short, if you authored it, then you are responsible for it. Nevertheless, the same First Amendment protections for free speech and freedom of the press that apply to printed publications also apply to electronic publications, including blogs.
Consequently, the idea of a lawless blogosphere is nothing more than a myth – and a potentially dangerous one at that. To the contrary, this interactive medium is ruled by a set of laws that is at once both familiar and constantly adapting.
– Bob Latham is a partner and Shannon Zmud is an associate in the Dallas office of Jackson Walker L.L.P.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.