[PEN-L:33238] blogspeech

["Ian Murray" <seamus2001@xxxxxxxxx>]

Free Speech -- Virtually
Legal Constraints on Web Journals Surprise Many 'Bloggers'

By Jennifer Balderama
Washington Post Staff Writer
Thursday, December 19, 2002; Page E01

12.19.2002

Late last year, John Stanforth posted to his personal Web site a
reminiscence about software he had developed for internal use by a
former employer. It was a minor project, he said, one he never thought
would warrant any secrecy.

So he was bewildered when, about two months later, he received a
cease-and-desist letter in an e-mail from his old company. It said that
by mentioning the project, he had violated the nondisclosure agreement
he signed when he joined the firm in June 1997.

Stanforth conferred with his lawyers, who told him that as far as they
could tell, he hadn't compromised any trade secrets. But he removed the
references to the project and the company because he didn't want to
contend with the headache of potential litigation. The company never
took further action.

The exchange, though, gave Stanforth, vice president of strategy at
venture development firm JSL Dragonfly Ltd., a new appreciation for the
hazards of publishing on the Web, particularly when it comes to the
workplace. "Every time I read someone's Web log I wonder how many of
these companies know what their employees are talking about," Stanforth
said.

Web logs, or "blogs," are online journals usually consisting of dated
entries, or "posts," arranged in reverse chronological order. Some are
work-related, with topics such as software development, sports or the
news media. Others simply chronicle life -- the glory of landing a job,
the sorrow of losing a parent, the thrill of teaching a child to spell.
Stanforth publishes his thoughts on technology, along with his
"pseudo-random musings."

In the past couple of years, hundreds of thousands of people have been
drawn to this burgeoning realm of digital publishing. Free Web-based
software has made it so easy to publish a blog that even the code-phobic
can thrive in a world once dominated by HTML wizards. All newcomers have
to do is choose a tool, select a Web page template, write a few words
and click a button.

But since many bloggers have no background in publishing, they often
come to the medium unaware of the rules that apply, and complaints are
becoming more common. Many people publish as if they were untouchable,
assuming that because what they write appears in a virtual world, it
won't come back to burn them in the "real" world. Many overlook the fact
that their rants can potentially reach millions of people when posted on
the Internet.

The same law that relates to publishing in the offline world, generally
speaking, applies to material posted publicly on a Web log, legal and
human resources experts said. Posting information or opinions on the
Internet is not much different from publishing in a newspaper, and if
the information is defamatory, compromises trade secrets, or violates
copyright or trademark regulations, the publisher could face legal
claims and monetary damages.

Authors generally are obligated to publish as facts only what they
believe to be true. But stating opinions can be tricky, especially when
those views relate to workplace issues, said Bret Fausett, a Los
Angeles-based lawyer.

Fausett keeps a Web log that chronicles the goings-on at the Internet
Corporation for Assigned Names and Numbers, the nonprofit organization
in charge of managing the system of Internet addresses. It's one thing
for people to use their personal Web sites to write reviews of, say, the
hit TV show "The Sopranos," he said. "As long as you don't work for HBO,
that's great."

But "it's another thing to say, 'Our server crashed today, and the idiot
IT person at our company couldn't get the thing running.' "

Evan Williams, co-founder of Pyra Labs, the San Francisco company behind
the Blogger.com publishing software, said the people at Pyra do not
monitor content, though they do investigate complaints.

"If something is clearly illegal, we will remove it. But that's pretty
rare," Williams wrote in response to an e-mail query.

More common, Williams said, is that an "employee/blogger will contact us
(in a panic) when he or she has gotten in trouble for blogging and needs
to know how to take something down before they get sued."

Experts on Web publishing warned that anyone digging for details about a
person or company via Google or other search engines can unearth reams
of archived Web log material.

The most flippant of remarks published two years ago could broadcast
something a company doesn't want competitors or potential clients to
know.

Even with supposedly anonymous Web logs, clues can tip off readers to
people's identities, whether it's jargon the writers use, references to
conversations between cubicle-mates or stories about personal
experiences.

"The Internet creates a veil of separation between you and other
people," said Gregory Alan Rutchik, managing partner at the Arts and
Technology Group, a San Francisco firm specializing in copyright and
publishing law. "Don't be misled by the fact that you're sitting in a
room, behind a locked door, at your computer. There's ways to find out
who you are."

For instance, those aggrieved by a posting have occasionally gone to
court to force Internet service providers to identify customers or cut
off access to offending sites.

One woman, a Web designer who asked that her name not be used, said she
lost her job because of what she wrote on her Web log.

She was summoned to her supervisor's office to discuss the narratives --
often derogatory -- that she'd written about her company and co-workers.
Although it doesn't say so on her Web site, the blog is mostly fiction,
consisting of veiled references and often composites of people, she
said.

After the meeting, she thought she'd succeeded in escaping with merely a
slap on the wrist. "We talked about it and resolved things, and I was
never going to talk about work on my Web site again," she said. "I was
under the impression everything was okay."

Two days later, she was fired. "I was shocked that they would take it
seriously," she said, "and that little old me with this little old Web
site would cause such a stir."

Pam Farr, president of Cabot Advisory Group LLC, a human resources
consulting firm in New Jersey, said such a scenario is not unusual.
"Many a career has been ruined by blasting off an angry diatribe whether
in person or in cyberspace," she said.

Many large companies have a policy that says only authorized workers,
such as those in the public relations department, are allowed to reveal
certain types of information, Farr said. Employees may assert that they
have a right to express their opinions. But even then, she said, there
needs to be a statement clearly marked on the Web site saying "this in
no way represents a position of my company."

"With the advent of cyberspace, we've had to evolve these policies,"
Farr said. "Somewhere between First Amendment rights and total
repression there is a practical middle ground."

She advises companies to craft an "information policy" that defines what
is considered proprietary information, describes where that information
resides and details who owns it.

Groove Networks Inc., a software firm in Beverly, Mass., has a number of
bloggers on its staff. Most are software developers "interested in
engaging with the wider community of developers and carrying on a
conversation about their area of expertise," said Jeff Seul, general
counsel and vice president at Groove.

When an employee approached company officials to inquire about Groove's
perspective on Web logs, executives decided to compose some guidelines.

The firm advises its workers to remember that "although you and we view
your website or weblog as a personal project and a medium of personal
expression, some readers may nonetheless view you as a de facto
spokesperson for the company."

Groove also notes that at times employees may be asked to "temporarily
confine" their commentary to topics unrelated to the company or to
"temporarily suspend" publishing to comply with securities or other
regulations.

"We tried to strike a respectful balance that would encourage people to
exercise their right to free expression while observing their
responsibility to protect confidential information and be respectful [of
companies] with whom we did business," Seul said.

So far, Groove has been largely hands-off in monitoring the blogs.
"That's not to say that we wouldn't react to it if something awful
happened or we had an employee who was badly disparaging people on their
blog," Seul said.

Ultimately, it comes down to "learning to be street smart on the
Internet," said Dan Bricklin, chief technology officer and founder of
Trellix Corp., a Concord, Mass., firm that makes Web site authoring and
blogging tools.

He compared un-savvy bloggers with tourists visiting New York who don't
know how to navigate and end up in trouble in some dark alley: They had
better be careful, because they can't know who might be lurking.