Ted Murphy (hereinafter referred to as "TM"): Welcome to Internet Marketing Voo Doo, Episode 2. My name is Ted Murphy. I'm the president and CEO of MindComet and with us this week is our special guest, John Dozier, president of Dozier Internet Law. John is a seasoned technology executive with a diverse background in both legal and litigation issues concerning the Internet and e-commerce. John, welcome to the show today.

John Dozier (hereinafter referred to as "JD"): Great to be here, Ted.

TM: John, one of the topics that comes up with our clients quite often is the legal issue surrounding blogs and consumer generated media. I wanted to ask you to be on the show today to kind of discuss blogs and the legal issues surrounding them. When you are looking at blogs and Internet law in general, what are the issues that you're dealing with with blogs and specifically, what are you dealing with when it comes to employees posting on blogs and employees maintaining blogs? How does that all work?

JD: Well, I mean, you've got a number of legal issues that come up in blogs, the same way that they come up in publishing anything else, particularly...probably the most analogous to a newspaper publication. But, the blogs are the...the dissemination of information to third parties and with it comes all of the risk factors such as copyright infringement, trademark infringement, defamation. Controlling what is posted creates issues and problems that potentially open up other areas of liability so there are a whole host of legal issues and there is a significant amount of training that really goes into setting up and establishing the protocols for the people responsible for managing the blog.

TM: So, I mean, I guess from our standpoint, you know we work with a lot of our clients in establishing corporate blogs, where they're...they're posting information about their products and their services and what's going on in their company. And in that respect, I guess what you need to do is work with people to define very set guidelines for content, and what can be posted, what can't be posted. Is that correct?

JD: Yeah, well, of course. And the first issue is to determine whether or not you're going to be in complete control of the blog. If you as an organization, allow third parties, whether they are employees outside this control group within your corporation, or third parties outside your company to post, then the legal issues and risks and liabilities are significantly greater and then really outside your control to a great extent, than if you are a-just allowing a particular set of individuals who've been trained to post to the blog for purposes of communicating information to the public.

TM: So, in consulting with your clients, when you're looking at how to set up a corporate blog and how to best contain the risks, do you typically...are you typically working with a central person who is a content approver if you will, and then you have contributors who are reporting to the content or submitting content to the content approver, and that person is then releasing the information? Or, do you open it up wider where you have a number of publishers that are able to publish to the blog and it is just understood that they are going to follow guidelines?

JD: Well, it depends on obviously the client and how they're established. Typically, you just can't afford to have legal counsel reviewing everything, so you pick a key person, and newspapers do it all the time of course with their editors. So ideally, you'd have an individual who is positioned as an editor and has the ability to make the basic calls concerning potential copyright infringement and trademark infringement. Probably the most prolific issue that we deal with in blogging is alleged defamation . . . and has some threshold rules and guidelines governing how to make the right decisions in the situations in which they're fairly black and white. But, you get into the grey areas, then it needs to be escalated typically to legal counsel, if you're...if you're seriously thinking about traveling down a road which creates risk. But again, every company has different risk levels; every company has different levels of sophistication and expertise.

TD: So, we've been talking about basically corporate blogs and blogs that corporations are aware of and that are sponsor...and they're sponsoring the blogs. But, what about when it comes to individuals? Let's say I am an individual working at a Fortune 500 company and I maintain my own blog or I talk about what's going on in the company, are there...are there guidelines where I can set for my employees what they're allowed to talk about, what they're not allowed to talk about, and how does...how does that all...how should a company manage that? Is that something that is...that is covered by a general Confidentiality Agreement between the employee and the company or is that something that should be addressed very specifically in another type of agreement?

JD: Well, let's face the realities of the life in the U.S., assuming we're talking about U.S. law, which is that we have a lot of rights as individuals concerning freedom of speech.

TD: Yep.

JD: The balance against that is the protection of confidential and proprietary information. And, most companies, if someone is in a sensitive position, will already have a...you know... a Confidentiality Agreement in place with that employee. If I were structuring a program, I would require every employee who intends to make public comments about the company in a blog to go through an application type process in which the company itself is not impeding his ability, his or her ability, to publicly speak about non-confidential matters, but you're educating the person as to what they should and should not be able to say in terms of defamation, copyright infringement, disclosing trade secrets, etc.

TD: Yeah, I get that, you know, that's a...that's a big question. You know, what is confidential information, what is defamation? You know, if I'm an employee and I...I'm working in a company and I despise the food served in the cafeteria on my...on my meal plan, and I talk about how much I hate it and how bad it is for you and everything else like that . . . is that...is that defamation, is that something that, you know, can the company control that?

JD: It could be defamation. Particularly if you a food broker or you're in the business of selling those types of products. It could be a defamation in the sense that it's attacking the quality of your product and it could also create, for employees who have stock options or own stock, securities issues.

TD: Okay.

JD: One of the...we deal with these types of cases all the time, on both sides. We represent employees and we represent companies. All too often we find that legal action is initiated by a company against an employee or former employee because of statements that were made that were defamatory, coupled with ownership of stock interest. If there is appearance of an attempt to manipulate stock, then the employee is at extremely high risk in terms of getting sued or having an investigation initiated by a governing authority. So, from a company standpoint, there needs to be education. There needs to be communication, there needs to be an understanding what the risk factors are. A lot of people think that under the Communications Decency Act, there is immunity from anything that you say on blogs, and that's just not the case. That Act is pretty restrictive in terms of its application. It protects statements made by third parties, but only in relatively limited circumstances. So, it's a very, very complex arena in this area of law. And, what we do see though, I think is a lot...is a very high degree of carelessness, both from the standpoint of employees as well as employers, in terms of managing the dissemination of this type of information. There are many, many ways that it could damage a company and could damage an individual.

TD: A lot of the things that we're talking about there are things that...that are specific to an employee or specific to a company in regards to blog. But, what about the legal issues surrounding consumer posts on a...on a blog? If I post something about a new product that I'm releasing, and I allow comments back from the public, what do I need to look for there? Do I, you know...is that opening me up for potential liability based on those public comments back on my blog?

JD: Yes, it is very high risk. Fundamentally, we in the U.S. determined, you know, back in the late 90’s that this was a potential problem and could impact the free expression of ideas over the Internet. So, Congress passed immunity for the owners of blogs, as long as they are not involved directly in managing content and really changing, potentially editing and changing what is being said. If you're editing and changing what's being said, making judgment calls that could impact the...the message that's being sent out, then you have absolute liability as a publisher, for what third parties are saying. But, for most Fortune 500 companies, for instance, that you know, they're operating on a global basis. They need to appreciate that the courts have found in many different countries, the jurisdiction for defamation, lies in the country, when it occurs on the Internet of course, jurisdiction lies in the country in which the damages have been incurred. So, if someone in the U.S., comes onto a U.S. company's blog, and publishes/states something that's false and damaging to a third party, for instance in the UK, and that site of course is available in the UK, UK law may apply, which means, you don't have that immunity under the Communications Decency Act that Congress granted here in the United States. So, the European, or the outside the U.S. issue, in terms of defamation, is a...is a problem. As far as controlling what's being posted, someone could come on, if you're allowing images, and post something that could be tremendously problematic, and if you're not editing it before it gets posted, it could make it up onto your blog and you could literally be in violation of federal law, and depending upon the explicit nature of the photograph, for instance. There may be criminal implications, under the Child Pornography Statute. And, as it relates to posting images or posting content, you're always going to have copyright infringement problems, to the extent that you as the owner of the blog are involved in promoting the message or the information, that's been posted. You may have adopted it as your own, which means that there are some other laws that protect blogs from getting sued when a third party posts copyright infringing materials and that law may not apply. So, you...you've got a lot of checks and balances here. If you do everything right, fortunately, Congress has made it pretty easy to avoid publisher liability or the liability for acts of third parties.

TD: But, that doesn’t necessarily protect you in a...in a global arena?

JD: It doesn't protect you in a global arena. We've had tremendous success, frankly, on behalf of some of our clients getting, you know, very derogatory statements removed from blogs and forums because the clients were doing business in Europe and our position is the immunity does not apply.

TD: Wow.

JD: So, there is a lot of different angles you have to work on both sides. You cannot assume that U.S. law applies and you cannot assume that any kind of lawsuit is going to come at you in...in the U.S.

TD: Well, John, I really appreciate you spending the time with us today. Obviously, all of these issues are something that all companies need to consider when their talking about blogs and they're looking at adding that to their marketing mix and certainly something that my company has to take into account when we are looking at developing plans for our...for our clients. If people are looking for more information and would like to contact John, you can go to cybertriallawyer.com. There, you can find a lot of information about John's firm and the type of law that they practice. John, I appreciate the time that you spent with us today. You’ve been very informative and I hope that we can have you back on the show again in the future.

JD: Great Ted, it's been my pleasure.

Announcer: For more information on this week's topic, visit internetmarketingvoodoo.com. this podcast has been brought to you by MindComet, the relationship agency.

End of Internet law attorney interview.

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