1 Blogs and Personal Web Pages: Legal Issues And Practical Advice Baker & Daniels LLP Webinar July 16, 2008 Audio Participant Code

2 Blogging 101  MySpace, Facebook, Individual Blogs  One 2006 Estimate – Facebook Was The 7th Most Visited Internet Site (Ahead of Google, Amazon)  Estimated 40+ Million Blogs  Some Estimate Number Is Doubling Every 6 Months

3 Employment Context  Potential Recruitment And Retention Resource  20-30% Have Used To Seek Information Regarding Candidates  Of That Group, >50% Eliminated A Candidate Based On Content  Tremendous Potential To Consume Time And Resources

4 Overview Of Legal Issues  Recruitment  Privacy Rights  Offensive/Harassing Content  Trade Secrets/ Confidentiality  Protected Concerted Activity (NLRA)  Off-Duty Protection Statutes  Retaliation/ Whistleblowing  Defamation  Product Disparagement  Copyrights And Other Intellectual Property

5 Blogs As A Recruitment Resource  No Explicit State Law Prohibition In Indiana  Be Careful What You Wish For: Instant TMI (race, disability, sexual orientation, other protected statuses)  Loss Of Ignorance Is Bliss Defense  But – Candid Insight Into Judgment

6 Privacy Issues  “But I Have A Constitutional Right Of Privacy, Right?” Not Necessarily.  Could There Be A Greater Waiver Of Privacy Rights?  Safe Course Is To Apply Reasonableness Standard

7 Offensive Or Harassing Content  Law Is Clear – Employers Must Take Proactive Steps To Prevent Workplace Harassment (Policies, Training, Monitoring, Etc.)  No Per Se Duty To Monitor Private Conduct  Duty Can Be Implied – Actual Or Constructive Notice Of Offensive Or Harassing Conduct  If Employer Becomes Aware, Needs To Take Corrective Action

8 Trade Secrets/Confidentiality  One Click Away From Worldwide Dissemination  Business Information, Customer Data, Pricing And Marketing Plans, Etc.  Action Step: Include Blogs In Policies And Confidentiality Agreements  Disclosure Of Material Information Not Otherwise Public That Affects Investment Decisions Can Create Issues Under Federal Securities Laws

9 Protected Concerted Activity  Protected Right Under The NLRA  Two Or More Employees Addressing Their Employer’s Working Conditions Or Wages  If Blog Activity Meets This Test, Unlawful To Discharge Or Take Adverse Employment Action

10 Off-Duty Protection Statutes  Limited In Indiana – Off-Duty Tobacco Use  Be Careful Of Other States  NY Example – Political And Recreational Activities  CO Example – Lawful Off-Premises Activity During Non-Working Hours

11 Retaliation/Whistleblowing  May Find Out Who Is Complaining About What  Takes Away Ignorance Defense  Practical “Big Brother Is Watching Concern”

12 Defamation  Indiana Requirements: 1) Communication With Defamatory Imputation, 2) Malice, 3) Publication, And Generally 4) Damages  One Click Publication To Millions  Protection Under Communications Decency Act For One From Comments By Another

13 Product Disparagement  Mass-Trashing An Organization And Its Products  Highly Visible Corporate Issue  Mass Advertising Source

14 Copyrights And Other IP  Copyright Issues Are Common  E.g., Using Video Excerpts Or Photos Without Permission  Fair Use And Other Exceptions  Trademarks – False Association, Dilution, Etc.

15 Practical Considerations Problem #1 - The Challenge Of Anonymity  Difficult To Take Action If Cannot Identify Source  Can Be Done Through “Doe” Lawsuits And Other Means  Costly And Time-Consuming

16 Practical Considerations Problem #2 – Morale And HR Issues  The Big Brother Is Watching Message  Overzealous Inquiries Into Private Life Can Drive Away Good Employees And Applicants  Potential Unionization Issue

17 Practical Considerations Problem #3 – Time And Resources  Can Lose Hours Of Time Better Spent Doing Other Things  Time Spent Often Yields Nominal Return On Investment

18 Should We Have A Policy? Depends, But Generally YES  Some Use Stand Alone Policies, Others Modify Existing Policies  Note Application Of Anti-Discrimination And Anti- Harassment Policies  Note Confidentiality And Proprietary Information Expectations  Note Expectations For Work Time Use  Take Action For Violations

19 Questions?