Academic journal article Santa Clara High Technology Law Journal

Hiding from the Boss Online: The Anti-Employer Blogger's Legal Quest for Anonymity

Academic journal article Santa Clara High Technology Law Journal

Hiding from the Boss Online: The Anti-Employer Blogger's Legal Quest for Anonymity

Article excerpt

Abstract

Anti-employer bloggers often use the anonymity of a blog to disclose information about employers or engage in discourse that the employer may perceive as adverse. Employers are increasingly willing to use the power of the courts against such anonymous bloggers. This situation has created a tension between anonymous speech rights and an employer's right to defend its legitimate business interests against disparagement, defamation. Since traditional anonymous speech principles have proven inadequate at resolving this tension, this article proposes new legal theories designed to ameliorate the problem.

I. INTRODUCTION

"The Internet has proved to be the greatest advancement in our ability to disseminate news and information since the invention of the printing press by Gutenberg in 1450." (2)

The rise of Internet bloggers has created a powerful information tool on the Internet. Anti-employer blogs are among that group and bloggers often use anonymity to disclose information about employers or engage in anti-employer blogging. Employers are increasingly willing to use the power of the courts against such bloggers to pursue defamation and breach of loyalty claims. Indeed, several cases have recently arisen where the courts have compelled Internet Service Providers ("ISPs") to disclose the identity of anti-employer bloggers. This situation creates a tension between the employer's right to defend legitimate business interests against disparagement, defamation and employee disloyalty, and the employee's speech rights. Long-standing principles of speech anonymity preservation are proving inadequate to the task of shielding anti-employer bloggers from disclosure. Consequently, the use of new legal theories to preserve anonymity in the face of employer lawsuits seeking identity disclosure must be developed.

II. THE RISE OF THE POWERFUL ANTI-EMPLOYER BLOG

A "Blog," or "web log," as originally named, is an Internet page that serves as a publicly accessible personal journal for an individual. Blogs emerged during the inception of the Internet, when skilled computer programmers created websites that would automatically update and provide hyperlinks to related web pages of interest. (3) Blogs assist readers in quickly finding information and this quick access to a listing of related sites was especially convenient in providing web surfers with presorted information in the time of slow connections and pay-by-the-minute fees. In 1997, Jorn Barger realized the significance of the growing popularity and usefulness of these web pages and described them as "weblogs," (4) which was later shortened to the term "Blog." (5)

In 1999, Brigitte Eaton compiled a list of every blog she knew about and created Eatonweb Portal. (6) Eaton created a criterion for blogs that stipulated that the site had to consist of dated entries. (7) Her criteria led to the now widely accepted definition of a blog: a web site that contains an online personal journal with reflections, comments, and hyperlinks provided by the author. (8)

Although it experienced a slow start, blogging quickly took flight in the mid-1990s with the introduction of automated publishing systems, such as Typepad.com, Wordpress.org and Blogger.com. (9) Such systems allowed the average Internet user to establish a personal online diary that contained no restrictions to publishing, content or potential readers online. However, one of the most attractive features of a blog to a blogger is the ability to post information while maintaining a hidden anonymity.

These exciting, yet basic qualities led to the current explosion in blog use. It is estimated that over 888 million persons have access to the Internet and estimates of the number of blog sites range from 10 to 30 million. (10) Moreover, it has been estimated that a new blog is created every 7.4 seconds. (11)

Today, blogs have arisen to cover virtually every area of human interest. …

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