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Splatter the Chatter - Pt. II
How to Control Employee Gossip in Internet "Chat Rooms"

by Peter Kelman, Esquire

This Article appeared in substantially the same form in Mass HighTech, October 25, 1999.

In the last column, we discussed some procedures your company should follow to eliminate and/or minimize the detrimental effect of on-line company gossip by employees. A well-written employee non-disclosure agreement is a vital tool which companies can use to control the flow of public information. This column will suggest some language your company's non-disclosure agreement should contain to help control this problem.

The Employee Non-disclosure Agreement
Of the several reasons that ISPs commonly remove bulletin board messages, violation of a company non-disclosure agreement is the easiest for a company to prove. A typical employee nondisclosure agreement recites that the employee will not divulge confidential or proprietary information of the company to third parties. This provision alone may not be sufficient. Relying on it to remove a message requires the company to demonstrate to an ISP that the offending message contains proprietary or confidential information. This can be problematic if the message contains information about some aspect of the company, like employee turnover, which is not typically considered confidential. Further a message consisting of mere opinions does not transmit confidential information, (e.g. "Management is in it only for the short-run for the money").

A better way to prevent publication of such statements is to include a provision in your employee nondisclosure agreement and in your company's policies and procedures manual that describes a process for posting statements on the Internet. An example of such a provision is:

To ensure that the Company delivers a consistent message about its products, services and operations to the public, and further in recognition that even positive statements may have a detrimental effect on the Company in certain securities transactions and other contexts, Employee agrees that any statement about the Company which employee creates, publishes or posts during employee's term of employment and for six month thereafter, on any media accessible by the public, including, but not limited to electronic bulletin boards and web-based chat rooms, shall first be reviewed and approved by an officer of the Company before it is released in the public domain.

Such a provision does not prohibit an employee from posting statements; it merely provides a procedure whereby such statements are reviewed, for legitimate business interests, before being published. Courts have long recognized the right of an employer to restrict the flow of company information in the context of non-disclosure agreements and reasonable non-competition agreements. A public employer, (a company funded in whole or in part by taxpayer dollars, not necessarily a public company, whose stock trades on an open market), however, is subject to First Amendment constraints which may limit its ability to enforce such an agreement. An analysis of whether an employee can make public statements about a public employer is fact-intensive and goes well beyond the scope of this article.

If an employee posts a statement about the company in the public domain, the presence of this provision should make your job much easier to convince an ISP to remove the message. ISPs are typically reluctant to remove a message based on it "defamatory nature," which requires an ISP to enter into a judgment about the truth of the particular statement. However, if you can demonstrate that a statement is in clear violation of a company restriction on such statements, an ISP will be more willing to remove the statement. By extending the prohibition for a period of time after an employee leaves the company, you will have a strong argument for removal of a message posted by the prolific, ubiquitous web author "exemployee."

In this age of electronic bulletin boards, a company's employee non-disclosure agreement should be carefully drafted to address the issue of employees posting statements in the public domain. Adopt a procedure to regulate such statements rather than implement an outright ban. Educate your employees to the potential damage caused by such statements, even those made with the best of intentions. Finally remind your employees that dirty laundry is best cleaned at home, not in the light of public scrutiny.

Copyright 1999, Peter Kelman. All rights reserved.

Copyright © Peter Kelman, Esq. 2001. All rights reserved. Please read the site terms of use.