Blogging – Are You Exposing Yourself To Legal Liabilities?

In November 2006, Blogging Asia: A Windows Live Report released by Microsoft’s MSN and Windows Live Online Services Business revealed that 46% or nearly half of the online population have a blog [Blogging Phenomenon Sweeps Asia available at PRNewswire.com].

Blogging Asia: A Windows Live Report was conducted online on the MSN portal across 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 updated.

This article focuses on Malaysian law however as the Internet transcends boundaries and jurisdictions therefore the laws of many countries may apply. In Malaysia, bloggers face legal risks that carry civil or criminal liabilities such as;

(a) copyright;

(b) trademark;

(c) defamation; and

(d) sedition.

Other than 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 artists or authors express their idea or fact on a piece of work but not the underlying idea or fact itself. Copyright protects originality of the work and prohibits unauthorised copying. Copyright protection is eligible for the following works refer to Section 7 (1) of the Copyright Act, 1987:-

(a) literary works, such as written works, novels, source codes in computer program and web pages and content in multimedia productions;

(b) musical and dramatic works, such as musical score, 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), records, tapes and CDs of music, drama or lectures.

Unfortunately, much of the copyright infringement occurring on the Internet goes undetected. New blogs at times use existing blogs for its content and this is done through copying or linking. Apart from that, posting copyrighted photographs, designs, product photos or product packaging from another website is also illegal.

There are “rules of thumb” to follow when creating or posting contents such as:- (a) create one’s own original image, graphic, code and words; (b) use licensed works within the scope of permitted use laid down by the owner; and (c) use free images off the Internet as long as the terms of the creator of the image are followed.

The same “rules of thumb” apply when posting programming scripts as it is normally a violation of copyright law to appropriate programming scripts from third parties. With regards to postings on one’s blog by third parties, the blog owner may receive an implied licence to the postings made by third parties. When offering podcast i.e. recorded and dowloadable audio file to be downloaded from blogs it is best that the podcast do not contain any copyrighted music belonging to others thus protecting oneself from any copyright infringement suits.

If copyright protects the way ideas or facts are expressed, trademark on the other hand protects words, designs, phrases, numbers, drawings or pictures associated with products and services.

A trademark owner enjoys exclusive right to use his mark in relation to his products and services refer Section 35 (1) of the Trademark Act, 1976. Trademark protection grants right to the trademark owner to prevent others from using identical trademark with identical goods or similar goods that is likely to cause confusion to the public refer Section 19 (1) and 19 (2) of the Trademark Act, 1976.

How does a blogger infringe trademark belonging to another? One example is when a blogger posts links on logos belonging to a trademark owner. When a visitor clicks on the trademark it will directly lead the visitor to the blogger’s blog instead of directing the visitor to the trademark owner’s website.

Such linking may cause confusion or deception as it raises serious risk that the blog is in some way connected with or related to the trademark owner’sproducts and services.

Generally, the term defamation refers to a false statement made about someone or an organization that is damaging to their reputation. The person publishing the statement must have known or should have known that the statement was false. While the Internet provides the arena in which defaming statement can be made or published, there is no specific legislation that deals with defamation on the Internet in Malaysia.

In Malaysia, the Defamation Act, 1957 applies to publications in printed materials and broadcasting through radio or television. Since the law applies to published or broadcast materials, hence in principle it applies to materials such as blogs and websites published on the Internet.

As defamation law is complex there is a need to distinguish whether a defamatory statement is a libel (written form) or slander (spoken words). In a case of libel, if it is determined that the statement is defamatory then there are presumptions against the author or the publisher. In the case slander, there is often the requirement to proof actual damages or special damages suffered due to the defamatory statement. Hence, slander law does not apply to blogs as it does not fall within the ambit of broadcasting the slanderous words by means of radio or television.

Due to rapid changes to the Internet and the convergence of technologies, one will wonder whether the courts will apply the libel law or slander law when blogs converted from text to speech format are transmitted on the Internet. However, all this depends on proving defamation and finding the identity of the blogger which can be an enormous task due to the anonymity of the Internet and its worldwide scope.

Another legal risk is when blogs are used to disseminate false,incomplete or misleading information regarding racial disturbances or contents that cause hatred or contempt towards the government or the ruler. In Malaysia, various offences are provided for in the Sedition Act 1948 such as it is an offence for any person to print, publish or distribute any seditious publication- see Section 4 of the Sedition Act, 1948 for other offences. Whether the provisions in the Act apply to publications on the Internet have not been judicially determined.

In Singapore the sedition law was applied in 2005 where the Singapore court jailed two users for posting seditious remarks on the Internet- Two jailed for ‘sedition’ on internet, South China Morning Post, Saturday, October 8, 2005. The South China Morning Post reported that the case is considered a landmark case underscoring the government’s attempts to regulate online expression and crack down on racial intolerance. The two cases represented the first time Singaporeans had been prosecuted and convicted for racist expression under its Sedition Act.

Arising from the case of the racist bloggers, on 8 November 2006 the Singapore Government proposed changes to its Penal Code taking into account the impact of technology such as the Internet and mobile phones- refer to Singapore Ministry of Home Affairs, Consultation Paper on the Proposed Penal Code Amendments at page 2. The amendments cover offences committed via electronic medium such as Section 298 (uttering words, etc with deliberate intent to wound the religious feelings of any person) to cover the wounding of racial feelings as well, Section 499 (defamation) and Section 505 (statements conducing to public mischief) to expand and include those “published in written, electronic or other media” see Singapore Penal Code (Amendment) Bill at pages 8 and 20. These amendments when passed empower the police and state prosecutors to prosecute those with offending blogs- Cf.Sections 298, 499 and 505 of the Malaysian Penal Code (Revised 1997).

There are reasons why the authorities are taking blogging seriously as half of the people that took part in the Blogging Asia: A Windows Live Report survey believe that blog contents are as trustworthy as traditional media and a quarter of the respondents believe blogs to be the quickest way to learn about news and current affairs.

With such reliance on blogs, contents containing false, incomplete or misleading information posted on blogs not only may cause panic, anger, contempt or political scandals; it may also cause political and economic instability.

The Internet presents challenges to existing laws that are slow to provide adequate protection to a party with respect to the use and content of blogs. Currently, codes of practice for Internet users including bloggers have not been proposed as part of the Internet regulatory regime currently operating in Malaysia.

Instead, bloggers need to practise self-regulation and understand the legal implications of blogging to ensure that their blogs are written in a responsible and lawful manner. In order to protect themselves, bloggers may provide terms of use and proper disclaimer to offer some degree of comfort and protection from third parties postings on their blogs.

For those bloggers who are not self-aware of the legal risks, efforts should be made to educate and raise awareness to those bloggers. Perhaps the social responsibility lies on the Internet service providers and website service providers to create a blogger’s code of ethics to educate its bloggers to be ethical towards their readers, the people they write about and the legal ramifications of their actions.

First Published at Current Law Journal April Part 2 [2007] 2 CLJ i