I hate to say I-told-you-so* but, well....I told you so.
Sooner or later the kind of problems that some US bloggers have had with their employers would begin to bleed into Britain. And so they have. I am not entirely sure if this is the first case of someone being dismissed because of their blogging activities but it is the first case that I am aware of and it has hit the headlines in quite a big way:
A bookseller has become the first blogger in Britain to be sacked from his job because he kept an online diary in which he occasionally mentioned bad days at work and satirised his “sandal-wearing” boss.
Joe Gordon, 37, worked for Waterstone’s in Edinburgh for 11 years but says he was dismissed without warning for “gross misconduct” and “bringing the company into disrepute” through the comments he posted on his weblog.
Oh dear! Just how bad and disreputable were these comments? Well, according to Mr. Gordon:
“This was moaning about not getting your birthday off or not getting on with your boss. I wasn’t libelling anyone or giving away trade secrets.”
Mr. Gordon appears to be genuinely surprised by the fact that his (now former) employers took such offence because he was not trying to be offensive or even controversial. However, Messrs. Waterstone’s saw things quite differently.
This is the whole point. Mr. Gordon was not aware that he had crossed any sort of line because there was no line. I have no idea whether or not Waterstone’s were aware of Mr. Gordon’s blogging activities at all but, if they were, then there appears to have been attempts made at settling between the parties what matters could and could not be made thus public. Now the unfortunate Mr. Gordon is standing out in the rain with his nose pressed against the glass window wondering what went wrong and how the hell he got there.
Blogging may not be as widespread in Britain as it is in the USA but, nonetheless, I confidently predict that we have not heard the last of this sort of thing. Whether you are an employer or an employee, I strongly recommend that you turn yours minds to discussing this issue in your workplace before disaster strikes and you all get famous for the wrong reasons.
* Actually, I told a lie. I love saying I-told-you-so.
This is, I believe, the first public domain glimpse of a growing problem to come.
Airline Stewardess, Ellen Simonetti, runs a blog called ’Queen of Sky‘ wherein she posts interesting bon mots about her life as jet-setting airline attendant.
All was seemingly going well, until Ms. Simonetti posted up a slightly frisky photograph of herself on her blog in her company uniform. Her employers were not amused:
Queen of the Sky, otherwise known as Ellen Simonetti, evolved into an anonymous semi-fictional account of life in the sky.
But after she posted pictures of herself in uniform, Delta Airlines suspended her indefinitely without pay.
Ms Simonetti was told her suspension was a result of “inappropriate” images. Delta Airlines declined to comment.
Oh dear. Says Ms. Simonetti:
“I never meant it as something to harm my company and don’t understand how they think it did harm them,”
It appears as if Ms Simonetti was entirely unaware that the company had any policy on these matters and, consequently, she posted her photograph in good faith. Borrowing from the movie “Cool Hand Luke”, what we have here is a ‘failure to communicate’.
Now Ms. Simonetti is an American and her employer is a US Company but if this incident were to occur in the UK then Ms. Simonetti might well have a decent claim for unfair dismissal on the basis that her employer did not take steps to advise clearly of the company policy on these matters.
It would probably be a fair bet that very few employers have any policy at all on employee bloggers because blogging itself has yet to the flood the plain of commercial consciousness. But that is all changing, and as much as I am loath to heap yet more responsibilities onto the shoulders of already overburdended employers, this is a problem that they are going to have to address and soon.
So if you are an employer, and you think your employees may be blogging (even in their own time) start devising a policy on what is and is not acceptable to publish and then make that policy clearly known to your employees. It may save a lot of tears and heartache (and legal fees) later.
The phenomenon of ‘celebrity blogging’ appears to have experienced a big boost with the launch of Quentin Tarantino’s Blog.
Or has it? Judging from the e-mails sent to “Quentin”, the reader’s response has been heavily coloured by a fairly high degree of scepticism as to whether the blog in question is really the enterprise of the real Quentin Tarantino or whether it is the handiwork of an fan/prankster merely posing as cult movie director.
This is a sample of just such a e-mail response:
What does your e-mail address, Tarantinoed@yahoo.com, mean? I’d say your obviously a hoax because Tarantino aint gonna have a yahoo account and use tarantinoed as a word it sounds shitty.
To which the reply is:
I don’t have an official website, although that IS being worked on right now. I’ve got a webmaster interested already. Then I’d stop using the blog and use the official site to answer e-mails.
Earlier, “Quentin” says:
I’ve been out of town for a while so let’s get straight down to it.
Over the past week a lot of people have been releasing statements saying this blog is a fake, and I’ve been asked to make a public announcement saying the same thing.
Here’s something for all you people to chew on: You want to know why Miramax and I haven’t denied the blog?
Because it’s real.
So is it the blog of the real Quentin Tarantino or isn’t it?
I tend towards the view that it is the real Mr. Tarantino. Or, if not directly set up and run by him, than it has at least been endorsed by him.
The reason I say this is because of the legal principle of ‘false endorsement’ which was established, as far as the UK is concerned, in the landmark case of ‘Irvine .v. Talksport Ltd’.
‘Talksport’ is a UK-based commercial radio station that issued a publicity brochure featuring a doctored photograph of the Irish Formula One racing driver, Eddie Irvine, appearing to hold a ‘Talksport’ radio up to his ear. The intended effect was to convey the impression that Mr. Irvine had ‘endorsed’ Talksport. Mr. Irvine had not only done no such thing, but upon finding out about the brochure in question, he also got straight onto his lawyers and sued, claiming ‘false endorsement’.
Mr. Irvine won and Talksport was left with a hefty bill for damages and legal costs.
Celebrity endorsement is a valuable commodity for the celebrity concerned. It is something which can attract valuable contractual consideration which benefits not just the celebrity financially but also the party has purchased the said ‘endorsement’ (in terms of sales). The Irvine case established the principle that the celebrity endorsement can be considered ‘property’ that should not be taken without permission (and it also inched us closer to the idea of ‘trademark’ celebrity images - but that is another discussion for another day).
Now, of course, everything I have discussed thus far concerns UK law but I find it difficult to believe that a similar principle would not be resoundingly handed down by any Court in the USA which, traditionally, is more commercially ferocious and litigous than the UK.
If the ‘Quentin Tarantino Blog’ was the work of an imposter, it seems unlikely that word of it would not have somehow got back to either Mr. Tarantino or his advisers who, in response, would be able to shut it down in a heartbeat. The fact that this blog is still up and going strong indicates to me that it is most likely to be the real ‘motherf***ing’ thing.Go back on the hippo's back...
Sometimes, judges hand down good decisions. Only sometimes, mind.
One such good decision was handed down last month in a US Federal Appeals Court when it was ruled that file sharing software (or ‘P2P’ as it is more popularly known) is not illegal.
The charge against P2P, that it is used to swap illegally copied material, is not untrue but that is no justification for declaring the entire technology illegal. It is rather like abolishing cutting implements because they can be (and sometimes are) used to commit murder.
Unfortunately, the response of the Recording/Media industry has been to rush off to Washington in an attempt to overturn the decision by including provisions against the possession of P2P software in the new INDUCE Act..
In my view, this is a deeply misconceived strategy. Attempts to stamp out new technologies are both iniquitous and self-defeating. Who can possibly deny that the film industry has made a king’s ransom from VCRs despite that fact that they are frequently used to make illegal copies of TV broadcasts?
The recording and media industries would be far better advised to devote their considerable talents and energies to (a) making the principled case for IP rights and (b) developing new business models to profitably exploit the new technologies from which we all benefit.
This is a short article I have written for the Centre for the New Europe which I think is somewhat germane to the world of blogging..
Speaking for myself alone, I always find it quite unsettling to find my ideas accurately reflected in the Guardian:
CBS’s admission that its story of George Bush’s special treatment when with the Texas air national guard was deeply flawed is being seen as a key victory for the new “blogging” community of the internet against old media.
It is being seen that way because… er, it is that way.
CBS was doubly at fault. It failed to appreciate the force of the thousands of voluntary fact-checkers out there on the web (let alone trying to harness their power in advance), while also failing to interview bloggers after the event as part of an ongoing story.
No, not at fault, just behind the curve.
In fact, bloggers are often people very expert in their own fields who attract other experts when issues in their domain are newsworthy. Stories in old media can be fact-checked instantaneously and the journalists and their newspapers held to account.
There is no doubt that the tectonic plates of journalism are moving. There is awesome potential in the internet as a gatherer, distributor and checker of news - not least through instant delivery channels such as mobile phones. This does not mean old media will die. But it will have to adapt quickly to what has so far been an asymmetrical relationship.
Blogs have battened off newspapers and many newspapers, including the Guardian, have launched their own blogs. But most newspapers, let alone TV stations, have not embraced the blogging revolution as an essential part of the future rather than an irritant in the background. The CBS saga may prove to be the wake-up call they needed.
In the interests of accuracy (well, I am a blogger!) it behoves me to point out that the Guardian has always displayed a readiness to recognise new tehcnologies and trends and they have been aware of the growing presence and significance of blogging for some time.
That said, this is the first mainstream media admission I have encountered that has been willing to admit that the mainstream media itself is under serious assault.
It is entirely consistent that the birth (and subsequent rapid growth) of the digital age should give rise to big, towering arguments about the law of Copyright and whether or not such a concept could, should or will survive this new technological frontier.
As a lawyer, I have been presented with many arguments against the entire concept of Copyright as a legal and enforceable principle. Some of these arguments have a sounder basis than others. But, of all the views I have encountered, few strike me as strange and ill-thought out as this one:
If I go up to Jack Valenti or Dan Glickman and ask them if I have the right to copy this DVD, they’ll say no. I can show them the receipt and they’ll still say no. If they really want to insist that I don’t have any right to make a copy, even after I explain the physics of the situation to them, then I really ought to ask them for my money back.
Now that I think about it, this could explain why I don’t have a DVD player at home and have never owned a single DVD. Ever. It could also be that I’m just cheap. But maybe, just maybe, it’s because my inner physicist is subconciously offended by any business model that is in conflict with the fundamental laws of the universe…
If the author’s “inner physicist” is offended by business models which run contrary to the laws of the universe then I suggest that his “inner physicist” needs to get out a bit more.
Business models (like the concept of Copyright itself) are an abstraction but there is nothing wrong with laws (or models) based on abstractions. Indeed, our entire tradition of law is based on expository abstraction. Corporations (or Companies in the UK) are merely notional and entirely artificial. You cannot touch them, feel them or sense them. Yet they have a legal personality that enables them to do business. Likewise the law of contract itself is an abstraction and entirely open to endless re-working and manipulation. Contractual obligations need only be certain and made in consideration of reciprocal obligations but I do not recall reading anything about the laws of the universe being involved.
We know that some animals devour their young. Presumably that is a law of the universe.
I do think that the recording industry, in particular, has responded to the digital age with a huge degree of ineptitude. I think (indeed, I expect) that they will have to radically re-define their business models in order to adapt and survive. But the laws of the universe have nothing to do with it.
It seems that the term ‘Corporate Responsibility’ is not just a fashionable buzzword. Some people are taking it very seriously indeed:
With the issue of reputation becoming more of a fixture for corporate Australia, law firm Holding Redlich is Australia’s first to set up a corporate social responsibility (CSR) service.
The firm says the service will help companies adopt practices that meet the demands of regulators, industry bodies and stakeholders, and comply with the array of international principles around CSR.
These principles include the Universal Declaration of Human Rights, conventions and recommendations of the International Labor Organisation, the Stockholm and Rio Environment Declarations, the Kyoto Protocol and the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights.
May I just say that I do not envy the task of the person or persons who have taken on the task of wading through that lot!
But having taken on this Herculean task, I assume that they will seek an appropriate reward and just such an reward will most likely come from some large commercial organisation whose bosses have decided that it is not all about profits but also about being nice to people and doing lots of warm, fuzzy things for the environment.
I am sure that such organisations do exist and, without wishing to cast any doubt upon their sincerity, I think it is reasonable to assume that, if they go to the trouble of acting on all these injunctions for the perceived common good, then they will want people to know about it. Especially their customers. In other words, there is no getting away from the ‘public relations’ element here.
And this is where the best laid plans of mice and men (and lawyers) ‘gang aft a gley’ because regardless of all the best intentions both said organisation and their august legal-eagles in the shape of Messrs Holden Redlich, all their good works are still conducted behind the closed doors of corporation-land. A company may well be putting the Universal Declaration of Human Rights into effect but what does actually mean in practice? How does it work? Who benefits and why?
You see, as far as the general public is concerned, all these grand-sounding organisations and declarations are still shrouded in a fog of mystery and gobbledegook and their implementation will, at best, only ever be sporadically and flickeringly illuminated by the occasional and instantly forgettable press release.
The organisation would be far better served not just by implementing these ideas but by talking about them and, more importantly, talking to their customers about them. They could talk about the International Labour Organisation and why it matters. Or the Kyoto Protocol and what is being done in response. The best PR is the truth.
None of which is to say that I am attempting to steal the bread from my fellow lawyers mouths. Heaven forfend! No, the lawyers have an important role to play in this process too. Let’s face it all lawyers have something of an image problem but the best way to mitigate against that (as well as summon the fancy of new potential clients) is to talk about what they do and why they do it and why their clients should be doing it as well.
The arduous task of implementing big ideas is something of a waste if no-one knows about it. So let them know. Get blogging.Go back on the hippo's back...
In past times of conflict, walls had ears. In modern conflicts, blogs have eyes:
But Spc. Buzzell’s writing aspirations may prove his undoing as a professional soldier. Recently, shortly after his commanders discovered My War on the Web, Spc. Buzzell found himself banned from patrols and confined to base. His commanders say Spc. Buzzell may have breached operational security with his writings.
A salutory reminder that your blog posts can be read by anyone, inculding the enemy.
The same lesson extends to company bloggers on civvie street. Many employment and service contracts contain a ‘confidentiality’ clause which prohibits the employee from divulging sensitive company information or trade secrets to anyone outside of that organisation. An employer is likely to take an exceedingly dim view of an employee who provides sensitive commercial information to a competitor who happended to stumble across said employee’s blog.
So before you unzip your trusty fingers and unleash then across your keyboard, you would be well advised to check with your company as to what information you may and may not blog about. Failure to do so may lead you to the doghouse (or glasshouse, for those in uniform).
While roaming at large through the wild, borderless world of the internet, it is easy to forget that the real world we actually live in is anything but wild and borderless. Down here on the ground, jurisdiction matters.
Take, for example, Mr Alan Meckler who has been blogging away in the USA about the current litigation in which his company is engaged:
At a recent court hearing over the eMarketer case that I have referenced, I learned that the eMarketer folks have been using my blog entries in the court (See August 17, 2004). I can only presume that this action was taken to show that Jupitermedia means business when it comes to legal actions. I just re-read my recent entry “update” about the case and can find nothing alarming other than an objective report on where the case stands.
Mr. Meckler reminds us that the US judicial system is famously (or infamously, depending on one’s point of view) open on matters of publicity compared to its British counterpart.
Hence, UK bloggers should steer clear of following his example. Under UK law, reporting restrictions on court proceeds apply as a matter of course. Although the bar is set lower in civil proceedings than in criminal matters, once a case is underway the issue is sub judice and publishing details could land the blogger with a charge of Contempt of Court. In serious cases, this can lead to a custodial sentence.
The only safe way to publish details about court cases is to wait until after ‘disposal’ (i.e. the verdict).
And there is also a second important point to remember here, again as kindly illustrated by Mr. Meckler:
… I learned that the eMarketer folks have been using my blog entries in the court.
Remember that everything you blog can be taken down and used in evidence.