To Blog or Not to Blog
Although Web sites differ slightly on the definition, a blog is a personal journal on the Internet that is frequently updated and intended for general consumption. One of the first authors of a blog, Dave Winer, defines it as "a hierarchy of text, images, media objects and data arranged chronologically, that can be viewed in an HTML browser." See http://blogs.law.harvard.edu/whatMakesAWeblogAWeblog. The word blog is short for "Weblog," and they generally represent the personality of the author or reflect the purpose of the Web site that hosts the blog. Topics sometimes include brief philosophical musings, commentary on the Internet, social issues and links to the other sites that the author favors. Blogs have become so popular that Merriam-Webster declared "blog" as the word of the year in 2004.
Various sources estimate the number of Web logs on the Internet to be anywhere from 8-30 million. The variety of blogs and bloggers (the author of a blog) that one can find is amazing. I found a Canadian man who shares his thoughts on home finances, a woman in the process of a nasty divorce who is obsessed with knitting, an online poker secrets blog and even a blog about the local weather conditions in Gainesville, Fla., although the name of the weather blog was "one-legged old fat man," which seems to have nothing to do with the weather.
There are thousands of blogs that deal with legal issues. Topics include a blog dedicated to the current Supreme Court nomination process, one devoted to appellate litigation and even a blog by a corporate law professor from California that purports to be "an eclectic mix" of law, politics and wine. I do agree with the phrase "eclectic mix," as the entries ranged from discussions about a Harry Potter character to a "West Wing" subplot to Senate Majority Leader Bill Frist's stock sale—not the kind of blogging I expected from a law professor. Admittedly, I found that the more eclectic the blog, the more time I spent reading it. I didn't spend too much time on the appellate litigation blog but the divorcing, knitting-woman's entries were a hoot.
As I browsed through the various Weblogs, I discovered that there was actually purpose to these sites. Many blogs are used to promote companies, products and/or services. Numerous blogs are ways for individuals, companies and organizations to express their ideas and thoughts, while others exist as a forum to make political statements. There are Weblogs that provide research information and tutorials. Additionally, reading some of the sites, I realized that it is a way to reduce the costs associated with hiring a mental health professional. I read some things that people should only tell their therapists!
All of this online sharing can't be good for everyone, however. Most companies have policies in place that prohibit personal Internet use on company time and company equipment. It is rare for a company to have a policy on personal home computer use. However, stories of employees being fired for blogs they write at home on their personal computers and during their personal time have been filling the headlines lately. Most recently, a flight attendant for Delta airlines filed a sexual discrimination suit after being fired. She was allegedly fired because of what the airline deemed to be "inappropriate" pictures, which she had posted to her blog. I looked at the site and the pictures at http://www.queenofsky.journalspace.com and in my opinion, I don't blame Delta.
Notable companies such as Google Inc. and Starbucks have allegedly fired employees for posting remarks online, including remarks against other employees. This new phenomenon started in 2002, when a Los Angeles-based Web designer, Heather Armstrong, included general stories about her job and workplace on her personal blog, http://www.dooce.com. She was fired for those stories, and ironically, her firing did help to create a new word in the English language: dooced—to lose one's job because of one's Web site. Ms. Armstrong's advice to bloggers today? "Be ye not so stupid."
Pennsylvania's State Legislator, Daylin Leach, is one of the latest to suffer as a result of his blogging. His site, http://www.leachvent.com, contained a variety of writings on political issues and writings that Leach considered to be comedy. Others, including the Anti-Defamation League of Philadelphia, considered it offensive and insensitive. Mr. Leach, with his political career in question, decided to permanently pull the Web site.
Another problem with blogging is the lack of quality information. Larry E. Ribstein, a professor at the University of Illinois College of Law states:
Like all speech, blogs can cause emotional harm [and] reputational damage, [and can] mislead and defraud. The particular problem with blogs is that they are not intermediated—they are simply individuals talking, amplified by the megaphone of the Internet. Because blogs need not invest in infrastructure, they also have no capital investments to bond their statements. As Jonathan Klein, now president of CNN, famously said, "[b]loggers have no checks and balances...[it's] a guy sitting in his living room in his pajamas."Ribstein, Larry E., "Initial Reflections on the Law and Economics of Blogging" (April 4, 2005), U. Illinois Law & Economics Research Paper No. LE05-008 at 12-13 http://ssrn.com/abstract=700961. There are no laws or even guidelines that govern the structure, language, type or content of a blog. So far, it appears that only at-will employees and those elected into office have suffered from the contents of their blogs.
There are very few court cases that provide any direction as of yet. In Apple Computer Inc. v. Doe 1, the court held that a blogger, who had allegedly disclosed trade secrets on his site, is not considered a journalist and therefore is not protected by any journalist privilege. The blogger was required to reveal his sources. Apple Computer Inc. v. Doe 1, 2005 WL 578641, 74 U.S.P.Q.2d 1191, 33 Media L. Rep. 1449 (Cal. Superior Mar. 11, 2005) (NO. 1-04-CV-032178). Another case has addressed the issue of copyright infringement. In L.A. Times v. Free Republic, 54 U.S.P.Q.2d 1453 (C.D. Cal. 2000), the court held that the posting of articles from the L.A. Times or Washington Post on a Web site was copyright infringement. Another legal issue concerning blogging that hasn't made its way up the legal ladder as of yet is defamation. As there are no rules and regulations regarding content, a blogger can say whatever he/she wants about any person whether they are a public figure or not. By creating the blog, does the blogger and/or the person written about become public figures? Is the blogger liable for any harm caused to the subject of his blog? What if your blog allows others to add entries—does this make you liable for those added entries?
What about licensing laws created for accountants, lawyers and doctors? What if a doctor licensed in Connecticut has a private blog in which he discusses how he treated his own ailment? Is the doctor dispensing medical advice illegally in New York when a citizen of New York reads the doctor's blog? The same issue may apply to the Canadian man I referred to earlier, whose blog discusses home financial issues. What about a nonprofessional dispensing legal advice on their blog—is it unauthorized practice of law? The list of legal issues and problems resulting from blogging is endless.
Again, I ask myself, to blog or not to blog? I have to go back to my teenage years and remember that I didn't even keep a diary because I always knew my brother would find it and read it. And although I find many of the blogs out there interesting, and some can pull you in like a good prime-time soap opera, I'm going to choose not to blog.