Blogging: Are You Exposing Yourself To Legal Liability?
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: Online Windows Live report was made on MSN portal in 7 Asian countries, 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 updated.
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 carry civil or criminal liability such as;
(c) defamation; and
Aside from the above, a blogger must consider other legal risks such as fraud, breach of confidentiality, and misrepresentation, which will not be addressed in this article.
Copyright protects the way in which 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; Please refer to 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; and
(d) sound recordings and films, such as films (traditional celluloid and various video formats), music, theater or conference records, tapes and CDs.
Unfortunately, much of the copyright infringement that occurs on the Internet goes unnoticed. New blogs sometimes use existing blogs for their content and this is done by copying or linking. Other than that, posting copyrighted photos, designs, product photos or product packaging from another website is also illegal.
There are “rules of thumb” to follow when creating or posting content, such as: – (a) creating your own original image, graphic, code and words; (b) use licensed works within the scope of permitted use established by the owner; and (c) use free images from the Internet as long as the image creator’s terms are followed.
The same “general rules” apply when publishing programming scripts, as it is usually a violation of copyright law to appropriate third-party programming scripts. With respect to one’s blog posts by third parties, the blog owner may receive an implied license for posts made by third parties. By offering podcast, that is, downloadable recorded audio files for download from blogs, it is best that the podcast does not contain any copyrighted music that belongs to others, thus protecting yourself from any lawsuits for copyright infringement.
If copyright protects the way ideas or facts are expressed, trademark, on the other hand, protects the words, designs, phrases, numbers, pictures, or images associated with products and services.
The owner of a trademark enjoys the exclusive right to use his trademark in relation to his products and services; see Section 35 (1) of the Trademark Act 1976. Trademark protection gives the trademark owner the right to prevent others from using an identical trademark with identical or similar products. products that may cause confusion to the public, see Section 19 (1) and 19 (2) of the Trademark Act 1976.
How does a blogger infringe the trademark that belongs to another? An example is when a blogger posts links on 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 the visitor to the website of the trademark owner.
Such a link may cause confusion or deception as it poses a serious risk that the blog is in any way connected or related to the products and services of the trademark owner.
Generally, the term defamation refers to a false statement about someone or an organization that damages their reputation. The person posting the statement must have known or should have known that the statement was false. While the Internet provides the setting where defamation statements can be made or published, there is no specific legislation dealing with defamation on the Internet in Malaysia.
In Malaysia, the Defamation Act 1957 applies to publications in printed matter and broadcast on radio or television. Since the law applies to published or disseminated materials, in principle it applies to materials such as blogs and websites published on the Internet.
As defamation law is complex, it is necessary to distinguish whether a defamatory statement is libel (written form) or libel (spoken words). In a defamation case, if the statement is found to be defamatory, there are presumptions against the author or publisher. In the case of defamation, there is often a requirement to prove actual damages or special damages suffered due to the defamatory statement. Therefore, the slander law does not apply to blogs, since it does not fall within the scope of the dissemination of slander on radio or television.
Due to the rapid changes on the internet and the convergence of technologies, one will wonder whether the courts will apply libel law or libel law when blogs converted from text to speech are broadcast on the internet. However, this all depends on proving defamation and finding the blogger’s identity, 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 race riots or content that provokes hatred or contempt towards the government or the ruler. In Malaysia, various offenses are provided for in the Sedition Act of 1948, such as it is an offense for any person to print, publish or distribute any seditious publication; see Section 4 of the Sedition Act of 1948 for other offenses. It has not been judicially determined whether the provisions of the law apply to Internet publications.
In Singapore, the sedition law was enforced in 2005, where the Singapore court jailed two users for posting seditious comments on the Internet. Two jailed for “sedition” on the Internet, South China Morning Post, Saturday 8 October 2005. The South China Morning Post that the case is considered a landmark case that underscores the government’s attempts to regulate expression online and crack down against racial intolerance. The two cases represent the first time Singaporeans have been prosecuted and convicted for racist expression under the Sedition Act.
Based on the case of racist bloggers, on November 8, 2006, the Government of Singapore proposed changes to its Penal Code, taking into account the impact of technology such as the Internet and mobile phones; See Singapore Home Office Consultation Paper on Proposed Penal Code Amendments on page 2. The amendments cover offenses committed by electronic means such as Section 298 (speaking words etc. with the deliberate intention of hurting religious feelings of any person) to also cover the hurts of racial sentiments, Section 499 (defamation) and Section 505 (statements leading to public harm) to expand and include those “published in written, electronic or other media”, see Singapore Penal Code Bill (Amendment) at pages 8-20. These amendments, once passed, empower the police and state prosecutors to prosecute those with offensive blogs Cf.Sections 298, 499 and 505 of the Malaysian Penal Code (revised in 1997).
There are reasons why authorities take blogging seriously, as half of the people who participated in Blogging Asia – a Windows Live Report survey believes blogging content is as trustworthy as traditional media, and a quarter Some of the respondents believe that blogs are the fastest. way of knowing news and current affairs.
With such reliance on blogs, content that contains false, incomplete, or misleading information posted on blogs can not only cause panic, anger, contempt, 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 blogging use and content. Currently, no codes of practice have been proposed for Internet users, including bloggers, as part of the Internet regulatory regime currently operating in Malaysia.
For those bloggers who are unaware of the legal risks, efforts should be made to educate and educate those bloggers. Perhaps the social responsibility lies with internet service providers and website service providers to create a blogging code of ethics to educate their bloggers to be ethical with their readers, the people they write about, and the legal ramifications. of your actions.
First published in Current Law Journal, part 2 April  2 CLJ i