Anonymous Blogging and Employment

My former partner, Randy Echlin (now Mr. Justice Echlin)brought to my attention an interesting article from the Duke Law and Technology Review called Anti-Employer Blogging: Employee Breach of the Duty of Loyalty and the Procedure for Allowing Discovery of Blogger's Identity Before Service of Process is Effected.  A mouthful of a title, but an interesting read.   

There is no doubt that blogs are an extremely powerful medium (and becoming more so by the day)and, in the employment context, so-called "gripe sites" can be extremely damaging to employers.  Many employees believe that anonymous posting provides them with a measure of protection that allows them to say anything without consequence. 

The author, Konrad Lee (Assistant Professor of Business Law, Management and Human Resources Department, Utah State University) reaches the following conclusion:

The rise of internet bloggers has created a new and powerful information tool on the internet. The authors of anti-employer blogs often hide behind anonymity to disclose confidential information about the employer or engage in disloyal anti-employer blogging. The employer has a right to pursue breach of the duty of loyalty claims against such persons and the anonymity of the internet should not protect them because anti-employer speech is not protected. The current method required by employers to obtain the identity of disloyal employee bloggers is cumbersome, expensive, and inefficient. Congress should enact legislation, in the manner suggested above, to form new federal rules allowing for the expeditious pre-service discovery of blogger identity. Such new discovery rules would streamline the process for employers to legitimately obtain the identities of anti-employer bloggers. This streamlined process would promote the protection of employers from unlawful speech and employee disloyalty and preserve the identities of innocent bloggers who owe no legal duty to the employers they criticize.

The article focuses on U.S. law and procedure and the situation may be quite different in Canada given our unique legal requirements (including possible analogies to the Canadian music "file swapper" cases). Nonetheless, the article is a must read.