This article is being republished from A First Taste of Law which has now shut down.
A Case Study Of The Wipro Blogging Policy
It’s not just Shashi Tharoor. There are other tech-savvy people who are making lots of comments on social media that they probably should not. At least that is what their employers think.
Infosys was forced to come up with an Online Media Policy as employees were reported to be discussing client details on Facebook and Twitter. Wipro recently launched a blogging policy for its employees. If you are an employee, you would want to know if this is legal, and to what extent it binds you. If you are an employer, probably you are wondering if you should have such a policy too, after all a lot of your employees seem to be very active on Facebook and Orkut! From the perspective of a lawyer, it is interesting to analyze this issue from both the angles and heck, that’s why I am writing this post so early in the morning.
If you are an employee, there isn’t much to worry. You probably already signed an employment contract which has a confidentiality clause, and that would cover discussing any confidential client details outside the organization anyway. However, it is unlikely that discussing work conditions, or bad HR managers will qualify under the same head. Does discussing these things in public damage the reputation of the employer? In all probability, yes. Naturally this is another major concern that these policies seek to address. Are these policies legally effective? I am afraid not much.
Truth is a complete defence to defamation, and courts and government are likely to side with employees freedom of expression should the occasion arise, and in a human resource intensive industry with high rate of attrition such as the Indian hi-tech industry, a company is unlikely to risk the stigma. Legal enforcement is next to impossible, but the employers may still be able to convince the employees to fall in line where the rules or policies are a bit reasonable.
To get deeper into this issue, let’s look at the Wipro policy that they have announced on their official blog.
BLG.1.1 If there is reasonable doubt on the sensitivity of information that would be posted, you must seek written consent from your managers or such competent authorities (TED/HR/Legal team) prior to such posting.
This is one of those sufficiently vague clauses that make you apprehensive about what you are going to say – the intended effect is arm-twisting into inaction. Who’s the fool who may consider a material sensitive enough and still go seek permission of HR or legal team? And who is the person who will risk giving such permission in a huge organization like Wipro? Plus, what is sensitive?
Setting aside the practicality of the clause, legally speaking there’s not much effect. But that is not the point anyway. Who’s going to sue employees?
BLG.1.2 You must think of the consequences of posting any content prior to actually posting on the blog especially while writing comments related to the Organization / Competition / Customers / Business Partners / General Public.
Again, very general and no legal effect. Content related to the Organization / Competition / Customers / Business Partners / General Public covers all conceivable topics in the world.
BLG.1.3 You must not refer or post any Wipro/Customer specific references like email addresses, logo, trademark information….
This must be already covered by the employment contract of the employees already, just another occasion to remind them of the confidentiality I guess.
More interesting of the lot is this:
BLG.1.5 You must not use blogging sites (including the posting of information) for any unauthorized purposes targeting Wipro colleagues and other general public in areas…
The clause goes on to prohibit defamation, racial or sexual slur etc. Well, illegal acts are already illegal, but what is added is that in case you are making an allegation which happens to be true (even if well known) against another employee, that could mean violation of these policies, if the company wishes to interpret the clause in that way.
BLG.1.6 Wipro reserves the right to monitor online blogs and interfere legally, if necessary, considering any content posting which is not in compliance with the policy.
This probably brings up the most controversial legal issue. To what extent can an employer monitor the activities of an employee? Is it justified to monitor the official email account? What about personal email account used at work from time to time to check personal mail? Different answers have been given by US courts to these questions, and obviously, anyone in India is yet to file cases about these issues. However, whether the employer can go to the extent of monitoring what an employee is writing on his personal blog or his friend’s Facebook wall from home when he is not working, is an area of law which is undecided in India. One these issues are taken up, either by a court or the legislature, I don’t see companies being allowed to monitor the employees in an unbridled fashion. Well, privacy law will take a while to develop.
These are more or less the clauses with some bite, and the rest just fill up the page. I am yet to come across the Infosys guidelines anywhere.
If you are an employer considering whether you should adopt similar policies for your employees, I will say it makes sense, not because it’s going to make a big difference as far as legal concerns go, but just to remind your employees to be responsible for their action on online spaces.
Nevertheless, your legal position will get a boost in two ways if you adopt a similar policy (get someone to draft it better, of course):
1. In case someone ends up suing you for actions of your employee (such as defamation or breach of confidentiality), you would be able to show you have taken reasonable care by adopting and implementing a prudent policy.
2. Violation of these policies can lead to a justifiable disciplinary action. You should have a clause in the employment contract itself stating that official policies of the company must be followed by the employee. Failure to comply therefore will justify a disciplinary action. Not writing the policy down in the paper may cause unnecessary hassles (such as legal challenges to the procedure) when you try to institute an action.