When would comments by an employee be attributable to a company? I'm thinking of a scenario where an employee posts comments on their company blog that are alleged to be libelous; my guess is the company would be named in any complaint along with the individual. Can the company disassociate itself from the blogger from a liability standpoint or are they going to be stuck in the claim?

A company’s legal responsibility for acts of an employee will generally be dealt with as a matter of state law dealing with the doctrine of respondeat superior, which translates as “let the master answer,” meaning the acts of a servant will generally be attributed to the master for purposes of liability. It may also be referred to as vicarious liability. Generally speaking, the employer will only be responsible if the employee was acting within the course and scope of his or her duties for the employer. Whether the employee was acting within course and scope may be the subject of significant disagreement, and an employer may become embroiled in litigation even though the employer believes the employee was not acting within the course and scope of their duties when the offending conduct took place.

Depending on the circumstances, however, in an online defamation case a federal statute may be relevant to the outcome. The Communications Decency Act (CDA) was enacted in 1996, and a portion of it was included in the legislation largely in response to a very poor court decision holding a company that provided an online forum liable for a posting by someone else who was not an employee. Although the company defendant involved in that case ultimately prevailed, through a somewhat unusual circumstance the court’s decision stood on the record.

Congress included Section 230 in the CDA to provide immunity to providers and users of an interactive computer service as to information that is provided by another information content provider. For example, AOL would not be liable for a posting to one of its bulletin boards made by an AOL customer. That immunity has been attacked repeatedly in litigation but has proven through the years to be a resilient and powerful defense tool. Most recently the California Supreme Court applied the immunity in a case called Barrett v. Rosenthal (http://en.wikipedia.org/wiki/Barrett_v._Rosenthal).

The twist under the facts you described, is that not only is the company the employer of the person who posted the offending item, but it is also the host of the site. It is entirely likely the company would be named as a defendant along with the party who made the posting, assuming that person could be identified. The action against the company theoretically could attempt to establish liability of the employer on two fronts: as employer and as host of the site. The company could be expected to argue that in its capacity as the provider of an interactive online service, it is immune from a defamation action under the terms of the CDA. Absent some unexpected fact, that should be a strong defense. On the other front, if the facts permitted, the company could be expected to argue that it was not responsible as an employer for the act of posting by the employee because the posting was done outside the course and scope of the poster’s duties. We would expect the outcome of this issue to be fact-dependent, turning on the nature of the employee’s duties and the content of the posting. In addition to asserting that it was not responsible for the employee’s action, the company could argue that the posting was not defamatory to begin with, again assuming the facts permitted.