In November 2006, Blogging Asia: A Windows Live Report published by Microsoft’s MSN and Windows Live Online Services Business revealed that 46% or almost half of the online population has a blog. [Blogging Phenomenon Sweeps Asia available at PRNewswire.com].
Blogging Asia: Windows Live online was reported on MSN portal in 7 countries in Asia, namely Hong Kong, India, Korea, Malaysia, Singapore, Taiwan and Thailand. Interestingly, the report found that 56% of Malaysians blogged to express their views, while 49% blogged to keep friends and family informed.
However, this article focuses on Malaysian law, as the Internet transcends borders and jurisdictions, so the laws of many countries may apply. In Malaysia, bloggers face legal risks that come with civil or criminal liabilities such as;
(a) copyright;
(b) registered trademark;
(c) defamation; Y
(d) sedition.
Aside from the above, a blogger needs to consider other legal risks such as fraud, breach of confidentiality, and misrepresentation that will not be covered in this article.
Copyright protects how artists or authors express their idea or fact in a work, but not the underlying idea or fact itself. Copyright protects the originality of the work and prohibits unauthorized copying. Copyright protection is eligible for the following works, see Section 7(1) of the Copyright Act 1987:-
(a) literary works, such as written works, novels, source codes in computer programs and web pages, and content in multimedia productions;
(b) musical and dramatic works, such as musical scores, plays, and television scripts;
(c) artistic works, such as drawings, sculptures and photographs; Y
(d) sound and film recordings, such as motion pictures (traditional celluloid and various video formats), records, tapes, and CDs of music, theater, or lectures.
Unfortunately, much of the copyright infringement that occurs on the Internet goes undetected. New blogs sometimes use existing blogs for their content and this is done by copying or linking. Aside from that, posting copyrighted photographs, designs, product photos, or product packaging from another website is also illegal.
There are “rules of thumb” that must be followed when creating or posting content such as:- (a) create your own original image, graphic, code and words; (b) use licensed works within the scope of permitted use set forth by the owner; and (c) use free images from the Internet as long as the terms of the creator of the image are followed.
The same “rules of thumb” apply when posting scripts, as it is usually a violation of copyright law to appropriate third-party scripts. With respect to posts on one’s blog by third parties, the blog owner may receive an implied license for posts made by third parties. When offering a podcast, i.e. a recorded and downloadable audio file to be downloaded from blogs, it is best that the podcast does not contain copyrighted music owned by others, thus protecting yourself from any copyright infringement claims .
If copyright protects the way ideas or facts are expressed, trademark, on the other hand, protects words, designs, phrases, numbers, pictures or images associated with products and services. .
The owner of a registered trademark enjoys the exclusive right to use his trademark in connection with his products and services. See Section 35(1) of the Trademark Act of 1976. Trademark protection gives the trademark owner the right to prevent others from using identical trademarks with the same or similar products. goods likely to cause confusion to the public see Section 19(1) and Section 19(2) of the Trade Marks Act 1976.
How does a blogger infringe a trademark that belongs to another? An example is when a blogger posts links to logos that belong to a trademark owner. When a visitor clicks on the trademark, it will take them directly to the blogger’s blog instead of directing them to the trademark owner’s website.
Such a link may cause confusion or deception, as it poses a serious risk that the blog is connected or related in any way to the products and services of the brand owner.
Generally, the term defamation refers to a false statement made about someone or an organization that is damaging their reputation. The person posting the statement must have known or should have known that the statement was false. While the Internet provides the arena in which defamatory statements can be made or published, there is no specific legislation dealing with Internet defamation in Malaysia.
In Malaysia, the Libel Act of 1957 applies to publication in printed materials and broadcast on radio or television. Since the law applies to published or broadcast material, in principle it applies to material such as blogs and websites published on the Internet.
As libel law is complex, it is necessary to distinguish whether a defamatory statement is libel (written form) or libel (spoken words). In a libel case, if the statement is found to be defamatory, then there are presumptions against the author or publisher. In the case of slander, there is often a requirement to prove actual or special damages suffered as a result of the defamatory statement. Therefore, the law of slander does not apply to blogs, since it does not fall within the scope of spreading slanderous words through radio or television.
Due to the rapid changes in the Internet and the convergence of technologies, one may wonder if the courts will apply the law of defamation or the law of slander when the blogs converted from text-to-speech format are transmitted on the Internet. However, this all depends on proving libel and finding the identity of the blogger, which can be a daunting task due to the anonymity of the internet and its global reach.
Another legal risk is when blogs are used to spread false, incomplete or misleading information about racial unrest or content that generates hatred or contempt for the government or ruler. In Malaysia, various offenses are provided for in the Sedition Act 1948, such as making it an offense for any person to print, publish or distribute any seditious publication; see Section 4 of the Sedition Act 1948 for other offences. It has not been judicially determined whether the provisions of the Law apply to Internet publications.
In Singapore, the sedition law was applied in 2005, when the Singapore court jailed two users for posting seditious comments on the Internet. Two Jailed for Internet ‘Sedition’, South China Morning Post, Saturday October 8, 2005. The South China Morning Post reported that the case is considered a landmark case that underscores the government’s attempts to regulate online expression and take action strong against racial intolerance. The two cases represented the first time Singaporeans had been prosecuted and convicted for racist expression under its Sedition Act.
Following the racist bloggers case, on November 8, 2006, the Singapore Government proposed changes to its Penal Code taking into account the impact of technology such as the Internet and mobile phones; see the Singapore Home Office Consultation Paper on the proposed Penal Code Amendments on page 2. The amendments cover offenses committed through electronic means such as Section 298 (pronouncing words, etc. with the deliberate intent to injure religious sentiments of any person) to also cover the injury of racial sentiments, Section 499 (defamation) and Section 505 (statements leading to public harm) to expand to include those “published in print, electronic or other media” see Singapore Penal Code (Amendment) Bill on pages 8 and 20. These amendments, when passed, empower the police and state prosecutors. to prosecute those with offensive blogs- watchSections 298, 499 and 505 of the Penal Code of Malaysia (revised 1997).
There are reasons authorities take blogging seriously, with half of the people who participated in Blogging Asia: A Windows Live Report survey believe blog content is as trustworthy as traditional media, and a quarter part of the respondents believe that blogs are the fastest. way to learn about news and current affairs.
With so much reliance on blogs, content containing false, incomplete, or misleading information posted on blogs can not only cause panic, anger, scorn, or political scandals; it can also cause political and economic instability.
The Internet presents challenges to existing laws that are slow to provide adequate protection to a party regarding the use and content of blogs. Currently, no codes of practice for Internet users, including bloggers, have been proposed as part of the Internet regulatory regime currently operating in Malaysia.
Instead, bloggers should practice self-regulation and understand the legal implications of blogging to ensure their blogs are written responsibly and legally. To protect themselves, bloggers may provide terms of use and an appropriate disclaimer to provide some degree of comfort and protection against third party postings on their blogs.
For those bloggers who are unaware of the legal risks, efforts should be made to educate and make those bloggers aware. Perhaps the social responsibility lies with Internet service providers and website service providers to create a blogger code of ethics to educate their bloggers to be ethical with their readers, the people they write about, and the legal ramifications of their actions.
First published in Current Law Journal, April, Part 2 [2007] 2 CLJ I
