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Blogospheric pressure: Watch your step with CEO blogs Featured

5:22pm EDT March 7, 2012

A growing number of business executives are taking to blogging, and with good reason. The benefits of well-executed CEO blogs are significant and vast. But blogging from the C-suite has plenty of pitfalls, too, particularly legal ones. So it’s essential to plan strategically to make sure your digital journal exploits the power of the form while avoiding the legal traps associated with executive-penned blogs.

“There are obviously terrific benefits to be gained from executive blogging,” says Tim Van Dyck, a partner in the Boston-based law firm Edwards Wildman Palmer LLP. “More and more CEOs are part of the Google generation and, therefore, feel more comfortable about blogging than, certainly, people in my generation do.

“The executive blog is a wonderful egalitarian method of communication,” adds Van Dyck, who chairs Edwards Wildman’s labor and employment group. “It can be a very powerful marketing tool. It can be a very effective means to recruit employees and to communicate and organize knowledge. It’s a great way to share information with clients and vendors. And it’s also a wonderful opportunity to put a human face on a company and to offer an exclusive look at the inner workings and culture of a company that traditional media can’t parallel.”

Nancy Flynn, executive director of the ePolicy Institute and author of several books on corporate blogging and social media, concurs, noting that blogs “can be a great way for C-level executives to communicate with customers, prospects, potential employees, decision-makers, the general public and the media.”

Watch for potholes

Those are a few of the benefits CEOs can realize for their companies by blogging. But those potential benefits are surrounded by serious hazards, says Flynn, whose books include “Blog Rules” and “The Social Media Handbook.”

“CEO blogging opens the organization up to a broad range of potentially costly risks, including workplace lawsuits, regulatory fines, lost productivity, public relations nightmares, security breaches and mismanaged business records,” she says. “Any time any employee or executive, right up through the CEO ranks, blogs on behalf of the organization, you really have to take a strategic approach to that blog, and you have to adhere to your organization’s blog policy, your content rules, your ‘netiquette’ guidelines and all of your other employment policies, including harassment and discrimination, code of conduct, and on and on.

“Long story short, you have to be mindful of the fact that content creates risk, so the easiest way to control electronic risk is to control your content,” Flynn says.

So what’s the best way to control that content? According to Van Dyck, having a corporate blogging policy is a must — and not merely having such a policy in place but steadfastly enforcing it.

“The company’s blogging policy needs to be clear and unambiguous in terms of explaining what kinds of blogging are appropriate and what kinds of blogging are inappropriate,” Van Dyck says. “And that policy needs to be enforced uniformly so that all employees, including executives, are subject to it. Particularly with respect to executives, who come into daily contact with proprietary insider information. The company should identify a gatekeeper, such as an in-house counsel, who reviews any executive blogging material before it’s posted. In other words, there needs to be a filter before it goes out.

“Obviously, both the executive and the company need to make clear that the blog is being monitored by the company,” Van Dyck says. “The executive, I think, needs to make sure that whatever is being blogged about is not subject to misinterpretation. Even something as innocuous as an executive saying, ‘Something big’s going to happen with the company,’ is a potential minefield. That could be construed as the company going public or the company being bought or entering into a new product line. And all of those things really need to be kept confidential.”

The corporate blogging policy should extend beyond the executive who is writing the blog. Comments appended to blogs by readers have to be monitored, as well, Flynn says.

“If CEO bloggers are going to allow third parties to comment on their blog, then you want to post a policy on your blog — your community blogging guidelines — to let those third parties know that, ‘Yes, you’re welcome to post your comments on our blog in response to our CEO’s posts, but here are the rules — here’s what’s allowed, here’s what’s not allowed.’ And you want to, either through technology or through a human set of eyes, monitor those comments,” Flynn says. “You definitely want to review those comments before they go online. Because you don’t want something posted that is unlawful or uncivil or a poor reflection on your company.”

Vet, vet, vet

Another must for executive bloggers, in order to avoid falling into one of the many legal traps associated with the form, is to have all blog posts reviewed by a legal expert before they’re launched into cyberspace.

“I know that the blogosphere doesn’t like to hear this, but I think having blog posts vetted before they’re published is a great idea,” Flynn says. “It’s something that I recommend to all of my clients. Here’s why: You wouldn’t publish your organization’s annual report without having it reviewed by your marketing department and your legal department. You need to think in terms of your blog posts as reflections on your company. And that content in those blog posts is as fraught with potential risks as any other kind of literature your company puts out.

“Just because blogging is electronic doesn’t mean that you can play fast and loose with the language,” Flynn says. “It is a more casual way of communicating, but in spite of its casual nature, it’s still fraught with real potential problems. So I do think it’s a good idea to have legal take a look at blog posts, particularly if it’s the CEO, because the CEO is the last person who you want to be making a gaffe and creating potential problems for your company.”

Van Dyck agrees about the importance of having executives’ blog entries vetted before they’re posted.

“I think that’s a very good idea,” he says. “At least with respect to posts that are authored by high-ranking executives. It gives the executives more protection, and it gives the company greater protection. There’s no downside to having those posts vetted by, if not in-house legal counsel, at least somebody who is aware of and knows what to look for in terms of the risks.”

The trend toward mobile blogging makes preliminary legal review of blog posts even more crucial.

“Technorati recently reported that 25 percent of bloggers are now engaged in mobile blogging,” Flynn says. “So if your CEO uses a smartphone or a tablet to post to your corporate blog, chances are, in that kind of circumstance, the writer might be inclined to take some shortcuts. You might be working a little faster and abbreviating language and maybe not taking as much time to reflect on whether this is really what you want to say or how you want to say it or whether this is something that’s really appropriate to put in the blog or whether this could get us into any trouble. So that’s another reason why I think it’s a good idea to have legal vet those blog posts.”

Keep secrets secret

What’s the most horrible thing an executive blogger can do when he or she writes a blog? What are the worst kinds of messes to avoid stepping in? According to Van Dyck, one of the most egregious errors a CEO can make is to slip up and reveal a trade secret or a similar type of proprietary company information.

“I think the greatest risk is the inadvertent disclosure of confidential and trade secret information,” Van Dyck says. “As we all know, high-ranking executives come into daily contact with company trade secrets and proprietary information. And the advent of executive blogging has dramatically affected who can communicate with whom, when, how, why, and where. Blogging’s availability means that executives can now transform their previously informal personal communications into a published, public document. And that’s a capability that is very much at odds with trade secret laws’ reliance on limited communication.

“In my view, executive blogging has significantly enhanced the likelihood of catastrophic disclosures of trade secrets and other proprietary information, so I think that’s probably the most significant risk associated with executive blogging.”

Van Dyck notes that he’s had firsthand experience with this type of circumstance.

“I had a situation where we represented a company who wound up using information that had been posted on a competitor’s blog,” he says. “The other side came back and explained that it was confidential. And we had a wonderful defense to that, because the information had been disseminated to the public by way of a blog.”

Flynn agrees that it’s critical for executives not bring up anything remotely related to proprietary company information in a blog.

“You have to keep your company secrets close to your vest,” Flynn says. “You want to be real careful that you don’t disclose confidential company information. You don’t want to reveal your secret recipe or expose your trade secrets or talk about your business partners’ trade secrets. Because once the secret’s out there, it’s no longer a secret.”

Flynn points out that it’s also crucial to make sure CEOs’ blog posts don’t violate any regulatory rules.

“Let’s say you do business in the financial services world,” she says. “Let’s say you’re publicly traded. You definitely don’t want to jump the gun and publish any posts related to sales or revenue in advance of the SEC’s specific guidelines on when that information should be released and how it should be released.

“Similarly, if you’re in the health care arena, if you were to post any content that violated HIPAA — if you revealed confidential protected health information related to a patient — you could be in trouble,” Flynn says. “At the end of the day, you really have to look at your blog the same way you should be looking at your e-mail, and make sure you’re adhering to the law and to regulatory rules and to your own organizational guidelines.”

Ultimately, when executives write blogs, they become the online face of their companies, so they had better keep their game face on.

“What C-level and executives and all executives need to bear in mind is that a business blog is different from a personal blog in that it is a reflection of your individual professionalism, it is a reflection of your organization’s corporate credibility, and it does present the organization with a lot of potential risk,” Flynn says.

If the CEO blogger commits a serious misstep, Flynn says, “It’s not the CEO who’s going to be sued, it’s the whole organization.”

HOW TO REACH: Edwards Wildman Palmer LLP, www.edwardswildman.com; ePolicy Institute, www.epolicyinstitute.com