HUMAN LAW MEDIATION

Beware the pitfalls of a blogging boom

Personnel Today has an article written by Lindsey Cartwright of Maclay Murray & Spens regarding blogging and the interplay with employees.

I think Ms. Cartwright is right to emphasise the need for consultation with staff in formulating a blogging policy.

Source of article - Andrew Hilton of Infoline. 

The legal risks of blogging

I obtained this detail via the ever-helpful Kevin O'Keefe.

Victoria Phynchon has posted an article by Jacqueline Klosek (pictured left) of Goodwin Procter LLP on the legal risks of blogging.

As Jacqueline observes, the legal issues blogs raised fall into numerous categories including intellectual-property via copying and linking to content, defamation, privacy & security, securities and litigation (discovery of blogged content).

She suggests the following:

• Develop and implement policies establishing the terms and conditions under which employees will be permitted to blog.
• Provide training as a component of the blogging policy.
• Appoint a corporate representative to field employee blogging questions.
• Inform employees of the consequences of violating blogging policies.
• Develop and implement a system for monitoring the company's blogs for content that violates terms of use, employee policies or applicable laws.
• Ensure that any personal information gathered via company blogs is handled in compliance with applicable privacy laws and company privacy policies.
• Develop and implement a policy for retaining and archiving corporate blog content.

This is pretty helpful advice.

Should employees be allowed to blog?

PRWeek is the leading weekly magazine for public relations practitioners working in all areas of public life with a circulation of 16,000 in consultancies and leading in-house private and public sector PR and corporate communication departments across the UK.

This week it includes a feature about blogging which stems from the fact that Orange has suspended its community manager, Inigo Wilson for comments made on his blog. Hannah Marriott of the magazine has written a thoughtful piece asking if companies should embrace blogging. It includes views of 4 people about blogging including ex Waterstones employee, Jo Gordon who was dismissed in connection with comments on his blog and myself. You can view the article in this file below.   

Download pr_week.doc

Companies need to rewrite employment contracts to deal with blogging phenomenon

An interesting article was published in the Scotsman last week about how blogging is impacting the need to reform employment contracts.

"The surge in blogging means thousands of Scottish companies will need to rewrite employment contracts, according to a leading Scottish lawyer.

With the number of workers sacked for revealing personal, inappropriate or confidential details on their weblogs, or blogs, growing weekly, experts have warned that new procedures are needed to ensure they can cope with the phenomenon."

Noele McClelland, at the law firm, Thorntons says court cases and complex legal battles emerging from dismissals of bloggers revealed that many employers are unprepared.

"By their nature, blogs and online diaries set out to entertain or provoke, but the blog culture has overtaken existing employment and internet use policies. The majority of these references may be responsible or relatively benign, but some highlight the blogger's displeasure with their employer or colleagues. It may cause nothing more than a minor embarrassment, but at worst, it has the potential to affect the company's entire corporate image.If an employer relies on a good public image, they ought to be considering the potential effects of blogging on their business."

Source of post - Kevin O'Keefe

English secretary blogger launches employment law claim in France

A story attracting some interest in the mainstream press relates to an English secretary who is bringing a test case under French law for being sacked after writing her blog. Please read the initial story in the Telegraph and the blogger herself's contribution to the Guardian's Comment is free for more detail.

As the lady herself Catherine S, relates "Once upon a time there was a blog, born in July 2004, under the nom de souris of Petite Anglaise. At first, it consisted of light-hearted entries showing a Brit's-eye view of Parisian life, writing of familiar expat gripes such as the quantity of dog excrement on the city's pavements. Over time the subject matter evolved and became more personal, examining subjects like my adoption, the breakdown of my relationship with my child's father, a budding new relationship and single motherhood. "

Unfortunately the partners of the leading British accountancy firm Dixon Wilson allege that she made herself and therefore the firm identifiable by including her own photograph on the weblog and that she made some references to firm business which brought the firm into disrepute.

The firm also complain that she used office time to work on the blog.

Aside from the merits of the case which I do not feel qualified to comment on, my view is that such a case was bound to happen and with the exponential growth of blogging and increased improvement of search engines, this is just one of the first of many such cases which is going to take place.

Employment lawyers need to create clauses to address blogs

Generally when I meet people and explain that I am blogger and I think that blogging is really important, I obtain two kinds of reactions.

One, people express some interest in the subject and want to find out more.

The other reaction is more negative. Some people just think that the phenomena of blogging is something created by the media and geeks- Essentially it has little importance.

Irrespective of one's views on the benefits of blogging, organisations(especially law firms) need to lay guidelines about how employees blog in their personal time.

Why?

Consider this- According to this link in law.com, a temporary San Francisco prosecutor wrote on his personal blog about a misdemeanour case he was handling last December.

Unfortunately for the temp, the Superior Court Judge Curtis Karnow heard about it. And he did not like what he read.

Karnow did not find the postings prejudicial enough to throw out the entire case, as the defence wanted. But in turning down that motion to dismiss the case in April, the judge criticised ex-prosecutor Jay Kuo, calling his conduct "juvenile, obnoxious and unprofessional."

Karnow also stated his intention to send his written ruling to the State Bar.

Some observations:

1 It is search engine optimisation which is changing the way we are as a society- I do not know more details about this case but I suspect that the judge was able to find out details about this posting due to doing a "Google(or equivalent) search." You have to be so careful in what you write.

2 Most law firms(and other organisations) are totally ignorant about how easy it is to set up a blog and accordingly have not factored in what their staff could be writing about in their personal time.

3 There is real danger for law firms as they are frequently dealing with(what should be) confidential material which if disclosed could interfere with the administration of justice. You may not blog but chances are that your staff will.   

Peter Lewis case - Tribunal ruling is out

The Employment Tribunal ruling has just been made on this case and please click here  for more details. Also, I suggest you do a relevant Google search as more details will emerge.

It appears that there has been (at best) a partial victory for Mr. Lewis with the crux of the decision being the Tribunal writing "We are persuaded that the decision to dismiss was not in fact influenced by the sexual orientation.....The decision to dismiss is wholly attributable to a genuine and legitimate conclusion that [Mr. Lewis] was guilty of the gross misconduct alleged."

However, the Tribunal did find that the way the bank handled an inquiry into the matter had procedural mistakes and that discrimination played a role.

The significant issue of how much money Mr. Lewis will recover will be decided at a later date. 

Toyota Motor North America face sex claim

A breaking news story is that a sex harassment case has just been filed against the president and CEO of Toyota Motor North America, Inc., the North American arm of Japan’s Toyota Motor Corporation. In particular, allegations have been made against Hideaki Otaka, a Toyota employee since 1965.

The complaint was brought by Sayaka Kobayashi(pictured above) who was plucked in March 2005 from a job in Toyota North America’s corporate planning department to become Mr. Otaka’s personal assistant in the company’s headquarters in New York City.

Ms Kobayashi is represented by Christopher Brennan of Ziegler, Ziegler & Associates LLP. The suit, filed in New York State Supreme Court, brings sexual harassment and employment discrimination charges against Mr. Otaka.

With respect to the total value of claim, I have been informed that it is $190 million, including $150 million in punitive damages, with separate breakdowns for compensatory ($10 million) and other claims related to Toyota's alleged negligent hiring and retention of Mr. Otaka.

France - A country heading into the future with a blindfold?

The current edition of the Economist has a cracking cover(pictured left) and also provide an insightful piece into the French government's attempts to reform its employment laws.

Last week 1 to 3 million demonstrated against the government's attempts to combat mass unemployment by encouraging employers to give under 26 a job by giving them flexible redundancy provisions.    

Let me briefly cover the issues:

1 According to the Economist, in a new poll whereas 71% of Americans, 66% of the British and 65% of Germans agreed that the free market was the best system of all, only 36% of the French believed this   

2 The Economist also cites that in one poll 3/4 of young French people would like to be a civil servant, mostly because it would mean a "job for life."   

3 From my perspective, France is one of the most conservative countries in the world. My French wife and I frequently remark on how there is such a lack of change with the French culture and politics. For example, you seem to see the same politicans and entertainers over such a long period of time.

4 On the face of it, it would appear to be a country dealing with globalisation by trying to ignore it. But there is a sting in the tail. France is not facing the same shortage of workers which other countries are facing due to declining births, so France may emerge not so poorly placed after all in the long run.       

Employment law CD & DVD is now available

As part of my commitment to introduce the law in a more accessible way to people, I can inform you that the CD/DVD version of the recent online Employment law seminar which I presented is now available.

The price is excellent value namely for a DVD recording and notes, you need only pay £57.50.

All the work was completed in conjunction with CPD4Lawyers. 

For more details, please click here.