The trouble with blogs and Web 2.0?
The never ending flow of Chicken Little articles telling us that the sky is falling with the advent of blogs and innovative technology continues this week with New Jersey Law Journal's article, 'Legal Technology - The Trouble With Blogs and Web 2.0.'
The article focused on employers dealing with employee use of the net. But I'm sure, like most of these articles, provided blog naysayers and the easily scared in large law firms (there's tons of them) with necessary ammunition to fend off the innovative folks in their firm.
The well intentioned article starts off warning employers that millions of employees have joined the world of Web 2.0, which includes social networking sites such as Facebook and LinkedIn, blogs, wikis, podcasts, video sharing sites and RSS feeds. Okay, that's reality, and like the real world with phones, letters, fax machines, cocktail parties, and water cooler gossip, people can create problems.
But look at some of the key points from the article.
- You should have policies and procedures prohibiting Internet disclosures of confidential information and prohibiting employees from expressing damaging opinions or information about their employer, superiors or co-workers.
- When blogging, employees shouldn't be violating securities laws, disclosing the company's intellectual property, disclosing any other employee's personal information, disclosing confidential information, discussing work-related legal procedures and controversies, using other company's copyrighted materials, or making false statements.
Duh.
The more I read articles like this, the more it seems that existing firm policies and common sense will govern 99% of the issues raised with blogs. Blogs are a medium of communication, just a new one.
Do we really need to scare those who don't understand blogs and social networking that their use is fraught with peril? Why do we want to chill innovation in law firms? Why aren't we promoting more transparent communication from lawyers?
What do you guys think?
Hmm, the article was about employment law in at-will employment state.
The author wrote: "On the other side of the fence, many employees erroneously assume that the First Amendment protects their blogging and social networking Internet activity.
While the First Amendment only covers state action and thus only covers public employees, it does provide some protection for anonymous posters."
I thought it was fairly useful to employees in NJ who might have thought that they had more legal protection that they do.
Hi Kevin
I think there's a place for appropriate (and not scare-mongering) blogging policies or staff contribution guidelines in organisations, particularly public sector organisations. Some staff simply don't have a good enough understanding of important legal principles, such as the laws of copyright and defamation, and existing technology use policies may have been written in the Web 1.0/read-only internet era.
At the same time, though, I agree with you that the naysayers can go overboard. To me, having appropriate policies in place is actually part of responsibly enabling the use of blogs and other social media tools and sites. I'm against draconian policies. I think it's a question of balance, after an open acknowledgement of both the benefits and risks.
As to law firm blogging, and as you know, I see (and have seen since 2004) many benefits and not many risks. And if any audience of bloggers ought to be able to understand the risks of blogging, it's lawyers!
I guess the other point is that, while we've been thinking about these issues for years, many organisations (including law firms) are only now beginning to consider and grapple with them.
You were ahead of the pack.
I have mixed feelings about this. When I first heard of blogging policies, I thought the same - why would one need a policy, when their use should be a combination of common sense and existing rules?
But that has not stopped people from doing things on blogs that they should have known better than to do.
I came to the conclusion that every time something new comes along, people forget the rules, and have trouble putting it in context. People said things in emails, for example, that they would never have put in a letter. And people put things in their blogs that they would never have put in an email. That's ironic, as each medium in turn has a larger audience, and thus requires more restraint. But then each one in turn is more immediate, so is more impulsive.
On the flip side, organizations often become too alarmed with the potential dangers for new things - such as organizations that ban Facebook, or glue USB ports shut so people can't use jumpdrives.
Many years ago I advised an organization that was looking into the issues and risks around allowing their employees to work at home. They did a great analysis, an ended up with a long list of concerns. While the concerns were all legitimate, I pointed out that many of those concerns were no different than an on-site employee, and the chances that they would be problems were slim.
So while one can argue blogging policies should not be needed, in practice they often are. I have done standalone blogging policies for clients, but my preference is to incorporate it into a broader based "technology use policy".
In reading the article, you could easily replace blogs and web2.0 with almost any type of communication: email, phone, magazines, letters..
The best they came up with was the Delta blog from 4 years ago?
A more interesting aspect was the patent troll blog and Cisco's reaction to that. They are standing behind Frenkel. But they have clarified their policy to prohibit anonymous posting related to the company or its area of business.
I think the idea of a "blogging policy" falls short because it is focusing on a particular technology platform. The issues cross all communications.
Second, a policy is going to fall short. There should be some clear THOU SHALL NOTs (anonymity, clients, etc) But is should be combined with best practices for using the blog. Otherwise you are just scaring people away.
I like the concept of reminding people of the rules when something new comes along. It can't hurt. Most firm's already have a communications policy in place that could/should cover all types of technology use. A reminder email or memo isn't a bad call for most organizations.
I'd also note that Employee publishing is actually easier to monitor today than it's ever been. Between Google & RSS monitoring tools, the HR department can be constantly scan for potential issues.
My big issue with this article was that it was a re-hash. Nothing new. It has been published annually for the past 4 years.
These comments are great guys. Helps me put a few things in context and certainly merits another post on law firm blog policies culling some of the points you raise.
Seems from this discussion that it's reaching a comfort level with things that are new and that are not understood. Then to discuss with those that do understand how blogs fit into the grand scheme of things.
The comfort level comes as I see it from first listening to people you can trust. Whether it's firm employees or a company like LexBlog, trust someone. Ask them the hard questions, look for them to provide analogies like you mention, and try something on a test basis. We had one law firm, one of the largest in the country, say 'let's do a beta blog.' That way we can adjust policies as needed and develop a comfort level with blogs.
Of course there will be some systems in place before even the beta blog begins such as who gets to post to the blog, how comments are moderated, and if anyone approves posts before they go live.
My frustration lies in a couple areas. One in law firm heads not trusting their own people, in many cases lawyers, who have a familiarity with blogs and who have investigated the issues. Rather than learn from these talented and innovative people, some firms put lids on them. Why hire the best people and not let them run?
Second is in legal publications accepting articles about all the perils of blogging from authors who do not blog and do not really know what is going on. Of course anyone can come up with the awful result cases. But why not, as one or two of you said, discuss all the good cases as we