This is not the first time that the issue of anonymous blogging has been in the press; last year the Senior Presiding Judge issued guidance that required judicial office holders to avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general. This guidance applied to both 'open' and anonymous blogging on the basis that an anonymous blogger could not guarantee that their identity could not be discovered.
Many bloggers want to maintain anonymity as it allows them to speak openly and honestly about their employers and professions without the fear of disciplinary action. Those who support the right to blog anonymously argue that this serves a useful function in a democracy, pointing to the European Convention on Human Rights (ECHR) as a guarantee of freedom of expression.
While the ECHR does protect freedom of expression, this is not an unfettered right but is subject to such restrictions as are prescribed by law and as are necessary in a democratic society including, in particular, such restrictions as are necessary to protect reputation or to prevent the disclosure of confidential information.
Employees have implied and, in most cases, contractual duties of confidentiality to their employers, as well as duties of fidelity. Where a blog discloses confidential information (whether the employer's or a client's) or is openly critical of an employer thus damaging its reputation, the employee is likely to be in breach of such duties.
If the employee is blogging under their own name, the employer can consider whether it would be appropriate to take disciplinary action in accordance with its disciplinary / social media policy. However, employers should bear in mind that if the individual is making a protected disclosure via their blog, then in very limited circumstances, such as where the employee has previously made a disclosure to the employer regarding the same information or where the employee reasonably believes that their employer will subject them to a detriment if they make the disclosure to the employer, the employee may be protected as a whistleblower from detriment or dismissal. However, what can employers do about anonymous bloggers?
Where anonymous blogging is defamatory, companies can make a complaint to the website operator requesting that they remove the defamatory material. At present, website operators will often comply with such requests for fear of otherwise assuming responsibility for the material (although the position may change when the Defamation Bill becomes law and further protections are introduced for website operators). In defamation / breach of confidentiality cases, an employer may also be able to obtain a court order requiring the website operator to disclose the name of the blogger so that it can take further action against the individual, although such applications may be costly and time consuming.
Requiring employees to disclose details of their social media presence and requesting passwords to such accounts as a matter of course and without good reason could fall foul of the rights to respect for private life and freedom of expression under the ECHR. As covered in an earlier blog post, such steps may also result in the employer breaching data protection or discrimination legislation. Employers therefore need to think very carefully before considering such measures.