Blogging – Are You Exposing Oneself To Legal Liabilities?
In November 2006, Blogging Asia: A Home windows Stay Report introduced by Microsoft’s MSN and Windows Stay On line Products and services Business enterprise unveiled that 46% or virtually half of the on the web inhabitants have a web site [Blogging Phenomenon Sweeps Asia available at PRNewswire.com].
Blogging Asia: A Windows Stay Report was done on the internet on the MSN portal across 7 nations in Asia specifically Hong Kong, India, Korea, Malaysia, Singapore, Taiwan and Thailand. Interestingly, the report located that 56% of Malaysians blogged to specific their views, whilst 49% blogged to hold mates and spouse and children up-to-date.
This article focuses on Malaysian law nonetheless as the World wide web transcends boundaries and jurisdictions hence the regulations of numerous nations may perhaps apply. In Malaysia, bloggers face lawful pitfalls that have civil or legal liabilities this sort of as
(a) copyright
(b) trademark
(c) defamation and
(d) sedition.
Other than the previously mentioned, a blogger have to take into consideration other legal challenges these as fraud, breach of confidentiality and misrepresentation which will not be resolved in this write-up.
Copyright protects the way artists or authors categorical their notion or point on a piece of operate but not the fundamental concept or actuality alone. Copyright safeguards originality of the perform and prohibits unauthorised copying. Copyright safety is eligible for the subsequent performs refer to Section 7 (1) of the Copyright Act, 1987:-
(a) literary performs, these kinds of as prepared functions, novels, resource codes in laptop program and internet web pages and content in multimedia productions
(b) musical and extraordinary operates, these kinds of as musical rating, performs and tv scripts
(c) artistic operates, these as drawings, sculptures and pictures and
(d) audio recordings and films, this kind of as movies (regular celluloid and various video clip formats), data, tapes and CDs of audio, drama or lectures.
Unfortunately, much of the copyright infringement happening on the Web goes undetected. New blogs at occasions use current weblogs for its content and this is carried out through copying or linking. Apart from that, submitting copyrighted images, layouts, product or service shots or item packaging from another web site is also unlawful.
There are “policies of thumb” to follow when creating or posting contents this sort of as:- (a) make one’s have original graphic, graphic, code and text (b) use licensed will work in the scope of permitted use laid down by the operator and (c) use cost-free visuals off the World wide web as extensive as the conditions of the creator of the impression are followed.
The exact “policies of thumb” use when publishing programming scripts as it is commonly a violation of copyright legislation to suitable programming scripts from third functions. With regards to postings on one’s website by 3rd parties, the site operator may well receive an implied licence to the postings built by 3rd parties. When featuring podcast i.e. recorded and dowloadable audio file to be downloaded from weblogs it is most effective that the podcast do not incorporate any copyrighted tunes belonging to others thus safeguarding oneself from any copyright infringement satisfies.
If copyright shields the way concepts or points are expressed, trademark on the other hand guards text, layouts, phrases, numbers, drawings or pics involved with items and providers.
A trademark owner enjoys distinctive suitable to use his mark in relation to his merchandise and providers refer Part 35 (1) of the Trademark Act, 1976. Trademark safety grants suitable to the trademark operator to reduce many others from utilizing equivalent trademark with identical products or identical merchandise that is possible to bring about confusion to the general public refer Portion 19 (1) and 19 (2) of the Trademark Act, 1976.
How does a blogger infringe trademark belonging to yet another? A person instance is when a blogger posts links on logos belonging to a trademark proprietor. When a customer clicks on the trademark it will straight direct the customer to the blogger’s site in its place of directing the visitor to the trademark owner’s internet site.
Such linking may perhaps result in confusion or deception as it raises critical possibility that the web site is in some way connected with or related to the trademark owner’sproducts and products and services.
Usually, the time period defamation refers to a phony statement manufactured about an individual or an organization that is detrimental to their status. The human being publishing the assertion will have to have acknowledged or must have recognised that the statement was false. While the Internet delivers the arena in which defaming statement can be produced or printed, there is no unique laws that specials with defamation on the Online in Malaysia.
In Malaysia, the Defamation Act, 1957 applies to publications in printed elements and broadcasting by way of radio or tv. Due to the fact the legislation applies to revealed or broadcast materials, for this reason in basic principle it applies to resources these as blogs and web sites printed on the Online.
As defamation legislation is advanced there is a want to distinguish regardless of whether a defamatory statement is a libel (prepared kind) or slander (spoken words). In a case of libel, if it is decided that the statement is defamatory then there are presumptions in opposition to the writer or the publisher. In the circumstance slander, there is normally the necessity to proof actual damages or exclusive damages endured thanks to the defamatory assertion. Consequently, slander regulation does not implement to weblogs as it does not slide in just the ambit of broadcasting the slanderous phrases by implies of radio or television.
Because of to immediate improvements to the World-wide-web and the convergence of technologies, one will wonder regardless of whether the courts will utilize the libel law or slander law when weblogs transformed from textual content to speech structure are transmitted on the World-wide-web. Nevertheless, all this is dependent on proving defamation and discovering the identity of the blogger which can be an massive task thanks to the anonymity of the Web and its around the world scope.
An additional lawful threat is when blogs are utilised to disseminate phony,incomplete or misleading information regarding racial disturbances or contents that induce hatred or contempt in direction of the governing administration or the ruler. In Malaysia, different offences are presented for in the Sedition Act 1948 such as it is an offence for any human being to print, publish or distribute any seditious publication- see Section 4 of the Sedition Act, 1948 for other offences. Regardless of whether the provisions in the Act apply to publications on the Online have not been judicially determined.
In Singapore the sedition law was applied in 2005 in which the Singapore court docket jailed two customers for posting seditious remarks on the Internet- Two jailed for ‘sedition’ on web, South China Morning Submit, Saturday, Oct 8, 2005. The South China Morning Post reported that the scenario is considered a landmark scenario underscoring the government’s attempts to control on the internet expression and crack down on racial intolerance. The two conditions represented the initially time Singaporeans experienced been prosecuted and convicted for racist expression less than its Sedition Act.
Arising from the scenario of the racist bloggers, on 8 November 2006 the Singapore Govt proposed variations to its Penal Code taking into account the impression of engineering this sort of as the Online and cell telephones- refer to Singapore Ministry of Household Affairs, Consultation Paper on the Proposed Penal Code Amendments at site 2. The amendments protect offences committed by using digital medium this sort of as Segment 298 (uttering text, etc with deliberate intent to wound the spiritual feelings of any particular person) to include the wounding of racial thoughts as well, Section 499 (defamation) and Area 505 (statements conducing to public mischief) to broaden and consist of people “revealed in prepared, digital or other media” see Singapore Penal Code (Modification) Monthly bill at web pages 8 and 20. These amendments when handed empower the police and point out prosecutors to prosecute these with offending weblogs- Cf.Sections 298, 499 and 505 of the Malaysian Penal Code (Revised 1997).
There are causes why the authorities are getting running a blog severely as half of the folks that took portion in the Running a blog Asia: A Windows Reside Report survey think that blog site contents are as honest as common media and a quarter of the respondents believe blogs to be the quickest way to learn about news and present-day affairs.
With these reliance on weblogs, contents that contains fake, incomplete or deceptive information and facts posted on blogs not only may perhaps cause worry, anger, contempt or political scandals it might also bring about political and financial instability.
The Net offers issues to existing rules that are slow to supply adequate security to a social gathering with respect to the use and content material of weblogs. Currently, codes of practice for Internet buyers like bloggers have not been proposed as element of the Online regulatory routine at the moment operating in Malaysia.
As a substitute, bloggers will need to practise self-regulation and recognize the legal implications of running a blog to make certain that their weblogs are published in a responsible and lawful way. In buy to safeguard themselves, bloggers may possibly give terms of use and correct disclaimer to provide some diploma of comfort and safety from third parties postings on their weblogs.
For those people bloggers who are not self-conscious of the legal risks, efforts should really be built to educate and elevate awareness to all those bloggers. Most likely the social responsibility lies on the Online company vendors and web-site service suppliers to generate a blogger’s code of ethics to teach its bloggers to be ethical towards their visitors, the folks they produce about and the legal ramifications of their steps.
To start with Posted at Recent Law Journal April Element 2 [2007] 2 CLJ i
