Privilege violation can also be a cause of penalty

Blog, shortened to "weblog", allows Internet users to express themselves freely on the Internet through "tickets" published. The question of the legal status of the blog and the subsequent problems it poses in the business world have emerged only recently after a series of dismissals of employees part bloggers and across the Atlantic.

Looking at the question, the National Commission for computing and liberties (CNIL) adopted in November 2005 (1) a waiver of prior declaration for blogs. In return, she reminded the bloggers that the personal data operated on their pages within the Act of 1978 (2) on the protection of personal data and are therefore subject to the rights of access, rectification and opposition.

In addition, the fact that blogs are not addressed to a recipient "individualized" (3) and that the information disclosed therein are accessible to all, does not allow blogs to benefit from the protective status of private, applicable to e-mail correspondence.

Thus, blog falls under the law of confidence in the digital economy (4) that the blog is an online communication service which blogger is the editor. As such, he is subject to a duty of advertising must declare to his hosting provider, has a duty to publish the right of reply requested by any person designated on a blog. It must, moreover, delete or block access to any infringing content posted on his blog on pain of liability.

The courts have always held that the conduct of the employee outside the performance of his contract of employment is not constitutive of fault (5), in particular as regards freedom of expression. However, the blogger may be sanctioned by his company for comments made on his blog.

Moreover, as "site public" visible by any user, blog falls within the law on the freedom of the press of 29 July 1881 prohibiting defamation. Thus, the employee may express his opinion and issue criticism, but must be careful not to disseminate offensive or defamatory words which violated the honour of his employer or to the reputation of the company. It is still the same for photos: while having an exclusive right to her image, employee blogger cannot disseminate photos returning a negative image of his company, under penalty of his employer.

Station to solicitor-client privilege

Can recall the dismissal of a stewardess for Delta Airlines for having posted on his blog of the provocative photographs of her wearing the uniform of the company.

Similarly, if the comments on the blog are discriminating against members of his company, its customers or suppliers, the blogger is liable a complaint of discrimination (6). Privilege violation can also be a cause of penalty. Indeed, any employee is submitted to his employer, to a rule of discretion under the Code of labour (7) as well as a duty of loyalty under article 1134 of the civil Code. These obligations may be strengthened when the employee is bound by a confidentiality clause.

Finally, the publication on a blog of criticisms repeated on a co-worker may be to create a hostile or degrading work environment for this person and thus justify a claim for harassment (8).

On the risks involved, employers may wish to regulate the use by their employees or by creating an internal blog at the company, either by adopting an internal Charter on the subject. It can be part of a more general computer Charter, which allows the company to clearly identify its internal policy on the subject and thus remind bloggers information whose disclosure is prohibited, the legal rules that any employee blogger must comply and sanctions possible.