Bloggers’ Bill of Rights Has No Legs

Ellen Simonetti is a former Delta Airlines flight attendant who writes a Web log called the “Queen of the Sky.” She is a “former” flight attendant because Delta fired her after she posted pictures of herself in uniform showing off her legs while lying across a row of seats in a Delta plane. Even though the shots were not all that racy, they were definitely not poses a passenger would expect to see when boarding a flight.

Now Simonetti is suing Delta for wrongful termination because she can’t understand why she was fired. Her situation is getting a lot of attention lately. Why? Let’s face it — talk about a story with legs!

When it comes to bloggers and the law, the question is whether we can apply standard legal guidelines. If not, do we need to look at blogging from another legal perspective? In the realm of intellectual property law, while the law generally lags behind new technological innovations, it does a good job of catching up when it needs to. However, do we need to move even faster to deal with the legal ramifications of blogging? Is blogging so different that is requires us to create a new set of laws?

What is Blogging?

Webster’s Dictionary defines a blog as “an online diary; a personal chronological log of thoughts published on a Web page.” Depending on whether you write blogs or are the target of one, you might define it differently.

Today, blogging comes in several forms. Some blogs have few or no links, just commentary from the blogger and maybe comments from those who visit the blog. To the reader, the technology does not appear new. Most look like an ordinary Web page, although there are many new tools being developed for creating blog entries and formatting them for easy publishing.

Is a Blog Journalism?

The debate rages over whether bloggers should be considered journalists. Depending on your point of view, bloggers are either the latest incarnation in the long tradition of crusading journalists going back to the broadsheets of colonial America, or just people with too much time on their hands and an ax to grind.

Last summer, both major political parties experienced considerable angst before their national conventions deciding whether or not to issue press passes to bloggers, like the ones that allow mainstream reporters access to the convention floor. In the end, the parties provided media credentials to bloggers who could demonstrate that they had a legitimate following. Those that could not were left outside with the other journalist wannabes who could not make the cut.

The same debate might include newsletter editors. Newsletters do not always qualify as journalism either, so perhaps the same rules and tests used in older formats are applicable to bloggers. New rules and tests may not be needed.

Where Do the Blog and the Law Intersect?

If the old rules apply for blogs, do they also apply for the bloggers? The short answer is yes. Despite the howls from some segments of the blogging community, there is really no need for new laws. When it comes to bloggers, the current ones fit just fine.

For example, like its competitors, Delta Airlines spends a lot of money creating the right image for its airline, its planes and its employees. Predictably, Delta took umbrage when Simonetti did something the company felt damaged its image and fired her. Delta could have done it differently, like asking nicely but firmly that the pictures be removed. Given the ensuing publicity around this story, the airline probably wishes it tried that approach first. Nonetheless, the law of “don’t publish pictures fooling around with your employer’s expensive equipment and reputation” applies to bloggers just as much as it does to the rest of us.

Simonetti is not taking this lying down. She is promoting a “Blogger’s Bill of Rights,” which includes the right to do whatever you want on your blog until your employer establishes a clear-cut blogging policy. Even then, her position is that bloggers can’t be disciplined, but can only get a warning, the first time the employer complains. It effect, this “bill of rights” would give bloggers a special status that other employees do not get.

Even Pro-Bloggers Fire People

Contrast Simonetti’s response with that of Michael Hanscom. He was on a temporary assignment with Microsoft when he posted a picture to his blog that he took on the Microsoft campus. Microsoft essentially fired Hanscom, telling his temp agency he wasn’t welcome on campus anymore, thus ending his assignment.

The picture showed a pallet of Apple Macintosh G5’s being delivered to Microsoft. Hanscom said he took care not to show anything in the background that would give away Microsoft secrets, security systems or even building locations. But since the picture was taken on its campus, it made public an activity that Microsoft has a right to keep low-profile if it chooses to.

Unlike Simonetti, Hanscom concedes that Microsoft had a right to toss him out. Although he is a blogger, he realized that the normal legal rules apply to his situation. He started blogging back when blogs were just called “personal Web pages,” so maybe he has enough history to see blogging in its proper context — it’s just publishing. It is not private communications among friends.

The legal threats to bloggers are the same ones any writer faces. Writers can get sued for libel, disclosure of trade secrets, defamation and a host of other infractions. Hopefully, most of us are mature enough to know where the line is and make sure that we don’t cross it.

Libel and Trade Secrets

The main thing that frightens bloggers is the prospect of a libel suit and the significant legal costs associated with it. Again, the same rules apply here as in any other situation. Libel is defined as a malicious publication printed for the purpose of defamation. By definition, it must be pretty blatant. It’s not like accidentally bumping into someone — you really have to be trying to damage their reputation.

Another threat to bloggers is being sued for disclosure of trade secrets. Apple recently sued a site that published information about unannounced Apple products. The poster’s lawyer appears ready to argue that it was just a lucky or informed guess and that the poster had no confidential information. In any case, the law of trade secrets is simple to understand for bloggers. If you have trade secrets, don’t put them in your blog. Even if it makes it harder to find fresh material. Even if you think you are only publishing for an audience of a few friends. That’s the law, and even bloggers need to live by the same rules as the rest of us.

Rules are rules. If this column included a picture of me posing in a judge’s courtroom in a miniskirt, I’d expect that judge to bar me from appearing in that courtroom. I might protest, but ultimately I would have to face the music. Not even a “Columnist’s Bill of Rights” would save me.

Phil Albert, a LinuxInsider columnist, is a patent attorney and partner with the San Francisco office of the intellectual property law firm Townsend and Townsend and Crew LLP.

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