David Hornik riffs on a recent email "alert" from the Howard Rice law firm:

[from VentureBlog: Lawyers Take Hold Of Blogging]

After more than our share of public blood lettings in the blogsphere as a result of employee bloggers running afoul of their corporate parents, it is not surprising that companies are starting to issue blogging guidelines. The issue is a real one but until recently it was a small and isolated problem. But if ever there was an indication of the increasing prevalence of corporate blogging, it can be found in the email alert I just received from the Howard Rice law firm. The email alert was entitled "Corporate Blogging: Seize the Opportunity, but Control the Risks" and it laid out both the legal risks raised by corporate bloggers and some "practical guidance" for dealing with those risks. In fact, when I spoke with the Howard Rice lawyers who issued the alert, they said that they were rapidly developing an "expertise" in the law surrounding blogging and would be issuing additional blogging alerts in the future.

Blogging is indeed mainstream when legal practices emerge around it -- which is not to say that the advice Howard Rice gives isn't well taken. As a former lawyer, I couldn't help but spend a bunch of time thinking about the legal implications of blogging on my professional life before we started VentureBlog. As a result, I ended up drafting one of the first blog Terms of Service out there (who knows, maybe it was the first -- I couldn't manage to find anyone else's to plagiarize [sic] at the time I was drafting VentureBlog's). More importantly, we also spent a chunk of time talking with the whole August Capital partnership about blogging and how it might implicate the partnership either directly or indirectly. While we obviously concluded that the benefits of blogging greatly outweighed the risks, it was extremely helpful to go into it with eyes wide open and clearly set expectations within my "company."

While David comes down on the side of the angels -- deciding that the benefits of blogging outweight the risks -- much of the meat of Rice's alert is chilling, simply because it will lean many to decide the opposite. Consider some of the points:

[from Corporate Blogging: Seize the Opportunity, but Control the Risks]

• Defamation and Privacy Torts. Companies may be held liable if their employees post content to the corporate blog that defames or invades the privacy of third parties.
• Intellectual Property Infringement. Posts that include a third party’s intellectual property, such as copyrighted material or trademarks, may expose the company to liability for infringement.
• Trade Libel. False or misleading statements made on a corporate blog about the goods or services of a competitor that cause or are likely to cause the competitor harm may be grounds for a trade libel action.
• Trade Secrets. Inadvertent disclosure of company trade secrets on a company blog can destroy the “secret” status of such information, rendering it ineligible for trade secret protection, and disclosure of a third party’s trade secrets could expose the company to liability for trade secret misappropriation.
• Securities Fraud. Material misstatements made on a company blog could expose a publicly traded company to liability for securities fraud under Rule 10b-5.
• Gun-Jumping. While a company is in registration, statements made on a company blog “hyping” the company could be deemed a prohibited offer of the company’s securities, in violation of federal securities laws.
• Selective Disclosure. Disclosure of material nonpublic information on a publicly traded company’s blog could be deemed a prohibited selective disclosure under federal securities laws.
• Forward-Looking Statements. Failure to include appropriate cautionary language accompanying a forward-looking statement on a reporting company’s blog could cause the statement to fall outside the statutory safe harbor for such statements.
• Employment Issues. Companies that terminate employees for posting inappropriate content to corporate blogs may be sued for wrongful termination, with plaintiffs claiming that the employer authorized the posting is discriminating against them for exercising their right to organize, or is violating their free speech rights. (Similar issues arise when an employee is terminated based on the content of the employee’s personal blog, or the content of instant messages or email sent by the employee.)
• User Privacy. Companies that collect personal information from individuals who visit or post comments to the blog may be required to comply with state, federal and foreign privacy regulations.
• Discovery. Companies can be sanctioned in the course of discovery for failure to produce archived blog content.

Its important to look at the list and to realize that 90% of the points made are not in any way unique to blogging. You could replace 'blog' with 'email', and you'll come to the conclusion that a business, particularly a public corporation, runs a long list of risks because of those pesky employees.

The scariest point on the list is 'employee issues' where -- if you read between the lines -- the best corporate policy is to require employees to not have personal blogs at all. Then no inappropriate content can be posted.

This is the dystopian world we seem to be headed toward. Now that blogs have been discovered by the corporate world, they will work steadily to stamp out individualism, and the subtle (and not-so-subtle) pressures to conform will increase. The trend is already clear. My recent informal poll shows that two thirds of respondents believe that it is impossible to retain a "private voice" at a personal blog if you are an employee.

But I maintain that we must reject this thinking, we must maintain the principle that individuals have a private life, and have a right to speak their minds in public, no matter how unpopular their views are to their bosses, their companies' customers, or the public at large.