We are currently considering setting up our own online blog that will allow both employees and the public to post comments on issues relating to our business. How do we handle any potential liability issues?

Catherine-Ellen O'Keeffe writes:

The inherent informality of such sites (also known as “user generated content sites”) may cause some to believe that there is greater latitude to say or do things than in more formal contexts, say a newspaper or a television programme. The legal reality is however that those who join social network sites, or companies that create their own blog, and disseminate information and materials run the risk of being held responsible to others as a “publisher” and a broad range of claims based on traditional legal principles apply. In this respect, blogs don’t create any “new” legal issues; users who publish content can be liable for their publication just like other content publishers.

While there may be statutory defences available to internet service providers (“ISP’s) who act as “hosts” to the blogging platform, the scope of protection available under the applicable law (EC Directive 2000/31/EC, otherwise known as the ‘E-Commerce Directive’) does not apply to circumstances where there is control over the Site for control indicates knowledge and awareness of the user generated content.

Though there is little Irish case law on implementation of the E-Commerce Directive, in the context of employee engagement on a site, it could be said that the Company may be considered to have imputed knowledge of any illegal material and are therefore not merely “hosts” of the Site. An employer is required in those circumstances to take steps to respond to any complaints made and remove the material if necessary. Time may be of essence. There are also vicarious liability issues in the context of employee interaction on the Site where they have posted comments that are, for example, threatening or abusive, raising bullying and harassment issues, or they may have uploaded material which they do not have permission to use, raising intellectual property concerns.

In order to appreciate the full extent of the legal risks that can arise from blogging and increase familiarity with these issues so that preventative steps can be taken before a problem develops, you should consider the following questions:

1. Have you an Acceptable Use Policy in place so as to inform employees and users of what is permitted on the site?
2. Have you Terms and Conditions, intended to exclude or limit the potential liability of the website, in place?
3. Have you a Privacy Policy in place so as to inform users of what is permitted on the site and what personal details will be gathered and for what purpose?
4. Have you a Notice and Take-Down Policy (“NTD Policy”) in place so that any requests for removal of content will be responded to as soon as reasonably possible?

Case-law, as well as statistical studies, have shown that the number of complaints made to providers of user generated content sites relate largely to copyright infringement and defamation. It is however also a platform for bullying and harassment issues to surface and even escalate. Employers should be cognisant of these statistics when putting in place preventative steps and in ensuring effective implementation of the NTD Policy. A prescriptive Acceptable Use Policy will also be useful in this regard as it will demonstrate to the employee what s/he can and cannot post on the Site. It might include clauses such as the following:

You agree to do the following:

Only publish user generated content (UGC) that is your original content and will not infringe the copyright, confidence, privacy or other rights of any third party when publishing UGC. This means that you hereby agree that you have produced the material you have sent to the Site or you have permission from or are authorised by the owner or owners to send it to us.

Not to post, link to or otherwise publish any UGC that is threatening, abusive, defamatory, indecent, menacing or otherwise unlawful."

It is recommended that all employers who have technological resources such as e-mail and internet available to staff are encouraged to have a written policy for use of such resources. It is not sufficient for an employer to simply post the policy on the intranet and hope that employees read it. The type of steps that employers need to take include the following:-

* Ensure the contents of the Acceptable Use Policy are dealt with in the induction process for new employees;
* Set up IT systems in such a way that employees have to read the policy in full before they can access e-mail or internet;
* Require employees to confirm that they have read the policy before they can continue to use the site, and
* Set up pop-up reminders for employees who use the blogging facility regularly.

Employees should also be mindful of their obligations under the Company’s Dignity at Work and Bullying and Harassment policies in this regard. Employees should also be made aware of any potential disciplinary action arising from any infringement of the Acceptable Use Policy; this should be integrated into the Company’s Disciplinary Policy.

The Notice and Take-Down Policy will have particular significance for those employees who interact on the Site and for those employees who are given responsibility to oversee enforcement of the NTD Policy. Training should be provided to employees on how the NTD Policy will operate on a day-to-day basis. Both the legal and practical implications of the policy should be understood by all for damages in bullying and harassment cases, defamation and copyright infringement are traditionally high and can have massive consequences for the financial position and reputation of the Company.