1www.bakerdaniels.com

Blogs and Personal Web Blogs and Personal Web Pages: Legal Issues And Pages: Legal Issues And

Practical AdvicePractical Advice

Baker & Daniels LLP WebinarBaker & Daniels LLP Webinar

July 16, 2008July 16, 2008

Audio - 1.866.642.1665Audio - 1.866.642.1665

Participant Code - 342441Participant Code - 342441

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Blogging 101Blogging 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

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Employment ContextEmployment 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

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Overview Of Legal IssuesOverview 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

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Blogs As A Recruitment ResourceBlogs 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

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Privacy IssuesPrivacy 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

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Offensive Or Harassing ContentOffensive 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

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Trade Secrets/ConfidentialityTrade 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

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Protected Concerted ActivityProtected 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

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Off-Duty Protection StatutesOff-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

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Retaliation/WhistleblowingRetaliation/Whistleblowing May Find Out Who Is Complaining About

What Takes Away Ignorance Defense Practical “Big Brother Is Watching

Concern”

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DefamationDefamation 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

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Product DisparagementProduct Disparagement Mass-Trashing An Organization And Its

Products Highly Visible Corporate Issue Mass Advertising Source

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Copyrights And Other IPCopyrights 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.

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Practical ConsiderationsPractical 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

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Practical ConsiderationsPractical 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

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Practical ConsiderationsPractical Considerations

Problem #3 – Time And Resources Can Lose Hours Of Time Better Spent

Doing Other Things Time Spent Often Yields Nominal Return

On Investment

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Should We Have A Policy?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

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Questions?Questions?