Blogging – Are You Exposing Yourself To Legal Liabilities?

In November 2006, Microsoft’s MSN and Windows Live Online Services Business released Blogging Asia: a Windows Live Report. It revealed that nearly half (46%) of online users have a blog. [Blogging Phenomenon sweeps Asia is available at PRNewswire.com].

Blogging Asia: A Windows Live Report was done online via the MSN portal in 7 Asian countries, namely Hong Kong (Hong Kong), India, Korea and Malaysia, Singapore, Taiwan, Taiwan, Thailand, Singapore, Malaysia, Singapore, Malaysia, Singapore, Taiwan, Taiwan, and Thailand. The report revealed that 56% of Malaysians blogged in order to share their opinions, and 49% blogged in order to keep family and friends updated.

Although this article is primarily focused on Malaysian law, the Internet transcends borders and jurisdictions so the laws of other countries could also apply. Bloggers in Malaysia face legal risks. These include civil and criminal liability.
(a) copyright;

(b) trademark;

(c) Defamation;

(d) sedition.

Bloggers must also consider legal risks like fraud, breaching confidentiality, and misrepresentation. This article will not address these issues.

Copyright covers the expression of an idea or fact by artists or authors on a work, but not the actual idea or fact. Copyright protects the originality of the work, and prohibits copying without authorisation. Copyright protection is available for the following works: Section 7 (1) Copyright Act 1987

(a) Literary works, such as novels, written works, source codes in computer programs, web pages, and content in multimedia productions.

(b) Musical and dramatic works, including musical score and plays, and television scripts.

(c) artistic works such as drawings and sculptures;

(d) Sound recordings and films, including films (traditional celluloid, various video formats), tapes, CDs, and CDs of music or drama.

Many copyright violations that occur online go unnoticed. Sometimes, new blogs use content from existing blogs. This is done by linking or copying. It is also illegal to post copyrighted images, designs, product photographs, or packaging from another website.

When creating or posting content, there are some “rules” that you should follow. These include: (a) Create your own image, graphic, and code; (b) Use licensed works within the permitted use scope laid out by the owner; (c) Use free images from the Internet, provided the terms and conditions of the creator are respected.

Posting programming scripts is subject to the same rules of thumb as copyright laws. It is usually a violation of copyright law for third parties to use programming scripts. The blog owner might be granted an implied license to third-party postings. Podcasts can be offered by offering podcasts i.e. Podcasts can be recorded and downloaded from blogs.

Copyright protects ideas and facts. A trademark protects words, designs or phrases as well as numbers and drawings.

The trademark owner has the exclusive right to use his name in connection to his products or services. Refer Section 35 (1) to the 1976 Trademark Act. Trademark protection allows trademark owners to stop others from using the same trademark on identical goods or similar goods, which is likely to cause confusion to customers. Refer Section 19 (1) and 19. (2) of the Trademark Act 1976.

What is the best way for a blogger to infringe a trademark owned by another person? A blogger posting links to logos owned by trademark owners is one example. A visitor clicking on the trademark will direct them to the blogger’s blog, not the trademark owner’s website.

This linking can lead to confusion and deception, as it increases the risk that the blog may be in some way related or connected to trademark owners’ products or services.

Defamation is generally a false statement about someone or an organisation that is harmful to their reputation. The person who published the statement must have known, or should have known, that it was false. Although the Internet is a place where defamatory statements can be made and published, Malaysia does not have any specific legislation regarding defamation online.

Malaysia’s Defamation Act 1957 covers publications in printed material and broadcasting via radio or television. The law is applicable to broadcast or published materials. Therefore, it can be applied in principle to blogs and websites that are published online.

Because defamation law can be complex, it is important to distinguish between a defamatory statement (written form) and a libel. If the statement is found to be defamatory, then presumptions are made against the author and publisher in a case involving libel. The case of slander requires that the plaintiff prove actual or special damages. Blogs are not subject to slander law because they do not fall under the broadcasting of slanderous statements via radio or television.

Because of the rapid technological advancements and convergence of technologies, it is possible to wonder if the courts will apply the law against libel or slander when blogs are converted from text-to-speech format. All of this hinges on the proof of defamation, and the identification of the blogger. This can be a difficult task because of the anonymity of the Internet’s global reach and the wide range of its users.

Blogs can also be used to disseminate inaccurate, incomplete or misleading information about racial problems or content that causes hatred or contempt for the government or ruler. The Sedition Act 1948 in Malaysia provides for various offenses. For example, it is illegal to publish, distribute, or print any seditious publication. See Section 4 of this Sedition Act 1948 for more information. The Court has not yet determined whether the Act applies to publications made on the Internet.

Singapore’s 2005 sedition law was used. Two people were jailed by the Singapore court for posting seditious comments on the Internet. South China Morning Post, Saturday October 8, 2005. According to South China Morning Post, the case is a landmark in government efforts to regulate online expressions and combat racial intolerance. These two cases were the first time that Singaporeans have been prosecuted under the Sedition Act for racist expression.

The case of the racist bloggers prompted the Singapore Government to propose changes to its Penal Code to take into consideration the technology impact such as mobile phones and the Internet. See the Consultation Paper of the Singapore Ministry of Home Affairs on the Proposed Penal Code Amendments at page 2. These amendments include offenses committed via electronic media such as Section 298 (uttering or attempting to hurt the religious feelings of anyone) to cover the harming of racial sentiments as well as Section 499 (defamation), and Section 505 (“statements conducing public mischief”) to be expanded to include “published in written, electronically or other media.” See Singapore Penal Code Amendment Bill pages 8 and 20. When these amendments are passed, they empower the police to pursue those who have violated blogs- SeeSections 491, 499, and 505 of Malaysia’s Penal Code (Revised 1977).

The authorities should be taking blogging seriously. Half of those who took part in the Blogging Asia Report Survey believe blog contents are just as trustworthy as traditional media. A quarter of respondents also believe blogs are the fastest way to find out about current affairs.

Blogs that contain misleading, incomplete, or false information can cause panic, anger and contempt, as well as political and economic instability.

The Internet poses challenges to existing laws, which are slow to provide sufficient protection for a party in relation to blogs’ use and content. As part of Malaysia’s current Internet regulatory regime, no codes of practice have been developed for Internet users or bloggers.

Bloggers should practice self-regulation and be aware of the legal implications of blogging in order to ensure that blogs are lawful and responsible. Bloggers may offer terms of use and proper disclaimers to provide some protection against third-party postings to their blogs.

Bloggers who aren’t aware of legal risks should be educated and raised awareness. The Internet service providers and website providers may have a social responsibility to develop a code of ethics for bloggers in order to teach them how to behave ethically towards their readers, people they write about, and the legal consequences of their actions.

Source By Sabrina Mohamed Hashim

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