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Splatter the Chatter - Pt. I
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 11, 1999.

Introduction
The Internet is the perfect medium to promote gossip. If material is available anywhere, it is everywhere; if material is available at any time, it is available all the time. The last thing you and your company want is to be the subject of that gossip. As companies like Raytheon and Xircom have discovered, once the genie is out of the bottle, it is tough to put back in. The key is to keep the genie in the bottle. This article will discuss some ways to prevent your employees from transmitting company gossip across the Internet.


The Problem
Many Internet service providers, or "ISPs" provide bulletin boards or chat rooms where individuals can post messages about companies. For example, Yahoo! hosts a bulletin board for every publicly traded company. Most ISPs do not edit or examine the content of messages posted by participants. The ISP is merely a passive conduit through which information passes. Congress, in the Telecommunications Act of 1996 and in Title II of the Digital Millennium Copyright Act has granted ISPs a broad swath of immunity which insulates them, in most instances, from the illegal activities of users. Consequently most bulletin board messages are posted without any editorial scrutiny.

Freedom of expression and lack of accountability are further enhanced by an author's use of a pseudonym when posting messages. ISPs permit contributors to post messages using fanciful names. Pseudonyms are usually purposefully chosen and designed to achieve some effect by the author (e.g. "companyemployee"), which casts the message in a certain light. Thus the Internet provides a medium through which an individual, emboldened by anonymity, can post a message, accountable to no one, to be read by an audience of hundreds of millions of people forever.

Raytheon and Xircom are two high-profile, publicly traded companies that have been the target of negative comments posted on web bulletin boards by individuals purporting to be company employees. Both companies filed lawsuits to compel the ISP to disclose the authors' true identities. For a company damaged by such statements, this procedure does little to restore image. The battle may be won, but the war is lost. Xircom, in fact, created a web page on which its general counsel defended the actions of the company.


A Better Approach
A better approach is to cause an ISP to immediately remove such damaging statements before the information spreads. Most ISPs have a policy defining the rules by which message authors should abide. For example, Yahoo! publishes "Community Guidelines" which set forth the rules for posting messages on its bulletin boards (see http://docs.yahoo.com/info/guidelines/community.html). Further, in Yahoo!'s user agreement, (see http://docs.yahoo.com/info/ terms), a user agrees not to post messages which:
· Are defamatory, libelous or invasive of another's privacy;
· Impersonate any person or entity; or
· Contain information which the user is under contract not to publish (such as inside information, proprietary and confidential information, or information which violates a nondisclosure agreement).

To implement these rules, Yahoo! provides a service whereby a reader can identify an offending message and request that Yahoo! remove it, citing the reason for its removal.

While there are a number of causes that can be cited for removal of a message, the easiest to prove is that the message violates your company's employee nondisclosure agreement. A typical employee nondisclosure agreement recites that the employee will not divulge confidential or proprietary information of the company to third parties. The best time to ask employees to agree to such a nondisclosure agreement is when they are hired. However, Massachusetts courts have held that continued employment of at-will employees may supply sufficient consideration to support entering into such an agreement after the employee has been hired. Whenever your employees sign such an agreement, use that opportunity to discuss with them the business reasons for monitoring statements in the public domain. Surely the best way to control the damage from such statements is to prevent publication in the first place.

If your company is unsuccessful in its efforts to convince an ISP to remove the message, you may resort to a civil lawsuit to compel the ISP to disclose the author's identity. Such lawsuits are called "John Doe" cases, since the true name of the defendant is not known. As the plaintiff in such a suit, you will have the burden of convincing the court that the information disclosed in the public message is sufficiently damaging to the company that it merits the court to issue a subpoena against the ISP to reveal the author's identity. However, as Raytheon and Xircom have discovered, the publicity generated by such a lawsuit should be considered before a company embarks on this path.


Conclusion
The best approach to controlling Internet gossip about your company is to prevent it from occurring in the first place. Adopt a policy limiting an employee's right to make statements about the company in the public domain. Educate your employees about the consequences of such statements. Finally, monitor the various web bulletin boards where such statements appear. An ISP will not police its bulletin boards for you and typical web-based search engines do not examine the contents of individual messages. The task may be an on-going labor-intensive one, but the benefit of early removal of such a message more than offsets the effort involved.

Copyright 1999, Peter Kelman. All rights reserved.



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