What Employers Need To Know About Employee Blogging
With the convenience of the internet, most employers enjoy quick and effective communications with their employees. But lately, many employers are expressing some concern with employees who have started “blogging.” This concern stems from the fear that some of these employees may be disclosing company matters or worse, criticizing the employer online. Because of these reasons, it is not surprising that many employers are looking for ways to address these employee blogging issues.
Employee blogging can involve the disclosure of confidential business information, disparagement or criticism of other employees or of the company itself, and display interests that are in conflict with the company contracts and policies. The trend these days show the court’s support for employers who decided to terminate a particular employee who was found to be engaging in behavior that is in conflict with the company’s best interest.
It has actually been established that employees who damage their employer via blogging are violating their obligation to be loyal to the company. This duty of loyalty encompasses duties of confidentiality and obedience. On the other hand, this duty of loyalty is violated in cases of disparagement of the managers, criticism of the company, harmful speech and insubordination. One example of an employee blogging that became a problem for the employer involved a flight attendant who posted provocative photos of herself wearing her airline uniform. Another employee, hired by Google, posted his criticism and other impressions of his employer. A Microsoft employee also took photos of several Apple computers as they were delivered and posted them on his personal blog. All these employees, in this case, were terminated on the basis of their personal blog content.
The blog monitoring being conducted by these employers is being considered by many employees as a violation of their “right to free speech.” This right to free speech, however, as indicated in the First Amendment, only covers the government’s restrictions on individuals or groups. But in “employment-at-will” states, existing law allows employers to terminate employees who were found to be disloyal to the company. Even so, employers should be very careful when involved in situations involving employee blogging. If they are not careful, they could damage their reputation in the business community especially if they were seen as being too intrusive to their employee’s personal activities.
In order to avoid these concerns, employers should implement general employee blogging policies, which will cover blogging agreements and procedures to be followed for employee blogging. These policies should also cover the use of electronic resources as well as rules on harassment, discrimination and non-disclosure. The agreement between employers and employees must also include in detail policies and guidelines involving the removal and use of confidential company information and rules for the use of company-sponsored blogs. In case the employer has not yet created guidelines for internet usage, the company should immediately come up with one. The employer should then advise their employees that they will be monitoring personal internet use especially during work hours. Lastly, employers must check the present condition of their internet security in order to know if they are at risk for data mismanagement including internet sites and archived emails. The general policies covering such internet usage and blogging should guarantee that the employees will not be able to disparage or criticize their employers and should promote confidentiality and professionalism.
While employee blogging guidelines may result in communication limitations, employers should be careful not to impede on labor laws, whistleblower statutes and other employment-at will policies. The employers should be aware that there are states that consider it illegal to terminate employees for off-site or private activities unrelated to their employment. There are also cases where termination is deemed illegal when the employee posted the company’s illegal activities on their blog. In connection, employees should be allowed to post statements related to union organizing and other similar activities. In other words, employee blogging policies should be drafted based upon these considerations.
It is recommended that employers assign an individual to do the blog monitoring. There are actually public corporations that are obligated to monitor employee communications as part of state or federal regulation. On the other hand, private corporations are allowed to monitor communications to make sure that their employees are not involved in improper conduct such as disclosure of confidential company information. More importantly, a company should create an employee blogging policy that adheres to the guidelines set by the National Labor Relations Act, where blogging activities are protected. Employers should make sure that their monitoring does not violate any NLRA policies on blogging. Informing employees of any revisions to the existing policies or changes in implementing guidelines is equally important.
Robert Masud, Esq. is the principal of Masud & Company LLC, a law firm for the world of business, finance and the internet. Find out how we can help you at http://www.masudco.com
Combating Cyber-Squatting and Other Domain Name Maladies: An Overview of UDRP Proceedings
Businesses that are working to establish an easily identifiable Internet presence oftentimes utilize their trademarks in their domain names in order to better direct customers to their website venues. Unfortunately, disputes many times occur when a business learns that some other individual or entity is using that enterprise’s trademark or something very similar in such a way so as to confuse consumers. Moreover, some businesses have ended up having to deal with so-called cyber-squatters, individuals or businesses who register domain names with hopes of reselling them at a premium price. There are protocols and procedures in place through which some of these disputes can be resolved in a more timely manner.
Pursuant to the standard registration agreements associated with domain names that include .com, .org, .net, .info, and .biz suffixes provide for the resolution of domain name related disputes under the provisions of the Uniform Dispute Resolution Policy (“UDRP”). Due to the fact that all domain name registrations have agreed to the UDRP as a part of their actual registration agreement, the UDRP is available no matter the residence of the domain name registrant or of the trademark owner who may have issues with the registration or the registrant. In the end, this fact does provide what must be considered to be a significant advantage of the UDRP over heading to court when the trademark owner resides in one country and the domain name registrant resides somewhere else.
Another benefit of a UDRP proceeding is the fact that such a proceeding is fast and inexpensive. This particularly is the case (so to speak) when compared to litigation in court. A UDRP proceeding is initiated with the filing of a complaint together with the payment of a filing fee. The filing fee for a dispute involving one domain name to be decided by a single panelist is as little as $1500. The fee will be higher if one of the parties then requests to have the matter decided by three panelists. The fee is somewhat higher if the dispute involves multiple domain names as opposed to a dispute involving only one domain name.
Another advantage of this system is found in the fact that the complaint is filed electronically. Once the initial complaint is filed, an answer is due within 20 days. The answer also is filed electronically.
Generally speaking, the complaint and the answer are the only documents that the panel will consider and review. Unlike in a court, there is no discovery and there is no actual live hearing or trial. Normally, a panel will deliver its decision in about three months. The decision will be sent to the parties via email. The panel has the power to order that the domain name be canceled or transferred. However, the panel is unable to award damages or attorney fees which are available in a court of law in some instances. Within about three months, the panel usually delivers its decision.
In order to be successful in a UDRP proceeding, a trademark owner who is challenging a domain registrant must prove three items to the panel:
1. The trademark owner must show a legal interest in the trademark in the first instance.
2. The trademark owner must show that the domain registrant has no rights or legitimate interest in regard to the domain name itself. The trademark owner only has to demonstrate that there is no legitimate interest. If the domain registrant fails to demonstrate any legitimate interest in the domain name, the trademark should prevail.
3. Finally, the trademark owner must demonstrate that the domain name initially was registered and then was utilized in bad faith. Pursuant to the UDRP, there are four circumstances in which bad faith can be demonstrated:
-An attempt to sell the domain name registration for an amount that is in excess of the registrant’s out of pocket expenses.
-A pattern of registering domain names to prevent trademark or service mark owners from being able to utilize that trade or service mark in a domain name.
-Registration of a domain name with the primary intent of disrupting the business of a competitor.
-Using the domain name to intentionally attract Internet users for a commercial purpose by creating confusion in regard to the ownership or endorsement of a particular website venue that is in fact not actually associated with the trade or service mark owner.
These circumstances in fact are only examples and other evidence of bad faith can also be demonstrated in a complaint.
After considering the matter as presented, if the panel agrees with the trademark or service mark owner, the panel will order the transfer of the domain name to that individual or entity. In the alternative, the domain name may be canceled.
Even though the panel cannot order attorney fees, a complaining party can pursue those independently in a court of law in some instances.
If you are interested in keeping abreast of the latest developments in the worlds of business, finance and the internet, you can easily subscribe to the alerts and legal updates that we provide with regularity. If you have any questions or concerns about domain names, cybersquatting, the UDRP or any other issues affecting your website or online business, feel free to contact us for a consultation either by telephone or via email.
Robert Masud, Esq. is the principal of Masud & Company LLC, a law firm for the world of business, finance and the internet. Find out how we can help you at http://www.masudco.com
Bloggers Need to Beware of Violating FTC Deceptive Practice Standards When Making Endorsements
The Federal Trade Commission (“the Commission or FTC”) has handed down an advisory opinion that may have dire consequences for companies that employ individuals who are involved in blogging and promote those companies products or services while blogging. According to the Commission, this may hold true even if these employees are undertaking this blogging on their personal time and even if the company management has no idea of what may be going on. The Commission advises that such a blogger must make readers aware of his or her connection with the company whose products or services he or she is endorsing.
The FTC has concluded in this advisory opinion that these specific actions may constitute deceptive business practices in violation of the Federal Trade Commission Act. The Federal Trade Commission Act defines a deceptive business practice as sets forth below:
1. a practice that represents or omits material information that likely would mislead reasonable consumers under the circumstances; and,
2. a practice that involves a representation or omission that is of material importance to consumers
The Commission continually and regularly has found that a seller’s failure to disclose a relationship that would materially effect a consumer’s opinion is deceptive.
In the case of the advisory opinion, the specific concern was the weight that a consumer will naturally give to a sponsored endorser. The Federal Trade Commission Endorsement Guides set forth:
“(W)hen there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement . . . such connection must be fully disclosed.”
A connection is deemed to exist in most instances when the endorser (here, a blogger) is paid by the company responsible for providing the product or service or when an endorser has a close business association (or has a relative with such an association) with such a company. Without a doubt, according to the Commission, employees of a business have such a close business association and their connection must be made public when they make any endorsement.
The bottom line is that it appears that companies and businesses have a duty to pro-actively monitor their employees blogging habits and warn them about the perils of making endorsements through blogging when their connection to that business enterprise is not made public. In a similar vein, if the employee is making negative statements about a competitor, his or her association with his or her employer must be made public to avoid violating FTC regulations.
Robert Masud, Esq. is the principal of Masud & Company LLC, a law firm for the world of business, finance and the internet. Find out how our lawyers can help you or assist your business at http://www.masudco.com
“Domain Name Spying”-The Latest Technique In Domain Name Sabotage
If you are a new business owner, you likely have spent a good deal of time trying to determine what domain name will be best for your operations. To this end, you may have taken the steps necessary to determine the availability of a particular name. In fact, finding that it is available may have made you very pleased. Not registering the name upon your first visit, you return a couple of days later to find that someone else has registered the name you wanted in the interim.
Of course, this all could have been a coincidence. Nonetheless, in this day and age, a more likely possibility may be that another entity actually tracked your search for a particular domain name and intentionally registered that name itself. Those entities that are now engaging in this insidious practice are said to be domain name spying. In fact, there now appear to be operations that solely engage in this practice.
The reality is that there is nothing new about operators interfering with a bona fide business’s attempts to register a domain name. Cybersquatting involves registering a name confusingly similar to a trademark and then offering to sell that name to the trademark’s actual owner for a greatly inflated price. There are other practices that interfere with legitimate attempts to register domain names, including tasting and kiting.
Domain name tasting is a process that takes advantage of the Internet Corporation for Assigned Names and Numbers (ICANN) policy that allows a five day grace period in which a domain name can be returned. A taster registers numerous names in order to generate advertising income from short term ownership to determine which names might be most profitable over the long haul. If the registrant finds that certain names don’t meet his or her goals, it is simply returned.
Domain kiting actually takes the tasting concept a step further. Through kiting the ICANN grace period is abused. As with tasting, the registrant will return a name at the end of the ICANN five day grace period. The difference between kiting and tasting is that when the registrant returns the domain name, the registrant will then quickly reacquire the same name all over again. Essentially, a registrant engaging in kiting will retain ownership of the name in question over an extended period of time and will never pay for that ownership.
By understanding tasting and kiting, a reader can appreciate how domain name spying is an outgrowth of these practices. The difference rests in the fact that spying is intended to target those names that someone else or another business enterprise has a specific interest in owning. At this juncture, it is not specifically known how a domain name spy gathers information relating to another business checking on the availability of a name.
Some victims of domain name spies may have at least some recourse through trademark and cybersquatting laws. However, if a domain name spy does not violate these laws, a business actually may have no remedy at this juncture.
If you find that you have been victimized while checking the availability of a name, you probably will end up with two choices:
1. select another domain name
2. pay the spy a premium for the name you actually want
The best way to avoid becoming a victim of domain name spying is to purchase immediately any name that you may have an interest in. Remember, if you elect not to use a certain name, you have five days to return that domain name with no charge to you.
Robert Masud, Esq. is the principal of Masud & Company LLC, a law firm for the world of business, finance and the internet. Find out how we can help you at http://www.masudco.com