Blogging – Are You Exposing Yourself To Legal Liabilities?

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In November 2006, Running a blog Asia: A Home windows Dwell Report launched by Microsoft’s MSN and Home windows Dwell On-line Providers Enterprise revealed that 46% or almost half of the net inhabitants have a weblog [Blogging Phenomenon Sweeps Asia available at].

Running a blog Asia: A Home windows Dwell Report was carried out online on the MSN portal throughout 7 nations in Asia specifically Hong Kong, India, Korea, Malaysia, Singapore, Taiwan, and Thailand. Curiously, the report discovered that 56% of Malaysians blogged to specify their views, whereas 49% blogged to maintain family and friends up to date.

This text focuses on Malaysian regulation nevertheless because the Web transcends boundaries and jurisdictions due to this fact the legal guidelines of many nations might apply. In Malaysia, bloggers face authorized dangers that carry civil or prison liabilities akin to;

(a) copyright;

(b) trademark;

(c) defamation; and

(d) sedition.

Aside from the above, a blogger should contemplate different authorized dangers akin to fraud, breach of confidentiality, and misrepresentation which are not going to be addressed in this article.

Copyright protects the way in which artists or authors specify their thought or reality on a bit of labor but not the underlying thought or reality itself. Copyright protects the originality of the work and prohibits unauthorized copying. Copyright safety is eligible for the next works discussed with Part 7 (1) of the Copyright Act, 1987:-

(a) literary works, akin to written works, novels, supply codes in laptop programs and internet pages, and content material in multimedia productions;

(b) musical and dramatic works, akin to musical rating, performs, and tv scripts;

(c) inventive works, akin to drawings, sculptures, and pictures; and

(d) sound recordings and movies, akin to movies (conventional celluloid and numerous video codecs), data, tapes, and CDs of music, drama, or lectures.

Sadly, a lot of the copyright infringement occurring on the Web goes undetected. New blogs for instance use present blogs for their content material and that is achieved via copying or linking. Other than that, posting copyrighted images, designs, product photographs or product packaging from one other website can also be unlawful.

There are “guidelines of thumb” to comply with when creating or posting content akin to:- (a) create one’s personal unique picture, graphic, code, and phrases; (b) use licensed works throughout the scope of permitted use laid down by the proprietor, and (c) use free photos off the Web so long as the phrases of the creator of the picture are adopted.

The identical “guidelines of thumb” apply when posting programming scripts as it’s usually a violation of copyright regulation to applicable programming scripts from third events. As regards postings on one’s weblog by third events, the weblog proprietor might obtain an implied license to the postings made by third events. When providing a podcast i.e. recorded and downloadable audio file to be downloaded from blogs it’s best that the podcast doesn’t comprise any copyrighted music belonging to others thus defending oneself from any copyright infringement fits.

If copyright protects the way in which concepts or information are expressed, trademark then again protects phrases, designs, phrases, numbers, drawings, or photos related to services and products.

A trademark proprietor enjoys the unique proper to make use of his mark in relation to his services and products refer to Part 35 (1) of the Trademark Act, 1976. Trademark safety grants proper to the trademark proprietor to forestall others from utilizing similar trademarks with similar items or comparable items that are prone to trigger confusion to the general public refer to Part 19 (1) and 19 (2) of the Trademark Act, 1976.

How does a blogger infringe a trademark belonging to a different? One instance is when a blogger post hyperlinks on logos belonging to a trademark proprietor. When a customer clicks on the trademark it’s going to straight lead the customer to the blogger’s weblog as a substitute for directing the customer to the trademark proprietor’s website.

Such linking might trigger confusion or deception because it raises a severe threat that the weblog is in a roundabout way linked with or associated with the trademark proprietor’s products and companies.

Usually, the time period defamation refers to a false assertion made about somebody or a company that’s damaging to their popularity. The particular person publishing the assertion will need to have identified or ought to have identified that the assertion was false. Whereas the Web gives the world by which defaming assertions may be made or revealed, there aren’t particular laws that offer defamation on the Web in Malaysia.

In Malaysia, the Defamation Act, of 1957 applies to publications in printed supplies and broadcasting via radio or tv. For the reason that regulation applies to revealed or broadcast supplies, therefore in precept, it applies to supplies akin to blogs and websites revealed on the Web.

As defamation regulation is advanced there’s a want to differentiate whether or not a defamatory assertion is a libel (written type) or slander (spoken phrases). In a case of libel, whether it is decided that the assertion is defamatory then there are presumptions towards the writer or the writer. Within the case of slander, there may be usually the requirement to prove precise damages or particular damages suffered as a result of defamatory assertion. Therefore, slander regulation doesn’t apply to blogs because it doesn’t fall within the ambit of broadcasting slanderous phrases by way of radio or tv.

Resulting from fast modifications to the Web and the convergence of applied sciences, one will wonder if the courts will apply the libel regulation or slander regulation when blogs transformed from textual content to speech format are transmitted on the Web. Nonetheless, all this relies on proving defamation and discovering the identity of the blogger which may be an unlimited process as a result of the anonymity of the Web and its worldwide scope.

One other authorized threat is when blogs are used to disseminate false, incomplete, or deceptive info relating to racial disturbances or contents that trigger hatred or contempt in the direction of the federal government or the ruler. In Malaysia, numerous offenses are supplied for within the Sedition Act 1948 akin to it an offense for any particular person to print, publish or distribute any seditious publication- see Part 4 of the Sedition Act, 1948 for different offenses. Whether or not the provisions within the Act apply to publications on the Web hasn’t been judicially decided.

In Singapore, the sedition regulation was utilized in 2005 place the Singapore courtroom jailed two customers for posting seditious remarks on the Web- Two were jailed for ‘sedition’ on the web, South China Morning Submit, Saturday, October 8, 2005. The South China Morning Submit reported that the case is taken into account a landmark case underscoring the federal government making an attempt to control online expression and crack down on racial intolerance. The 2 circumstances represented the primary time Singaporeans had been prosecuted and convicted for racist expression below the Sedition Act.

Arising from the case of the racist bloggers, on 8 November 2006 the Singapore Authorities proposed modifications to its Penal Code considering the effect of know-how such because the Web and cell phones- discuss with Singapore Ministry of Dwelling Affairs, Session Paper on the Proposed Penal Code Amendments at web page 2. The amendments cowl offenses dedicated by way of digital medium akin to Part 298 (uttering phrases, and so on with deliberate intent to wound the spiritual emotions of any particular person) to cowl the wounding of racial emotions as effectively, Part 499 (defamation) and Part 505 (statements conducing to public mischief) to increase and embody these “revealed in written, digital or different media” see Singapore Penal Code (Modification) Invoice at pages 8 and 20. These amendments when handed 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 explanations why the authorities are taking running a blog severely as half of the people who took half within the Running a blog Asia: A Home windows Dwell Report survey consider that weblog contents are as reliable as conventional media and 1 / 4 of the respondents consider blogs to be the quickest technique to find out about information and present affairs.

With such reliance on blogs, content containing false, incomplete, or deceptive info posted on blogs not solely might trigger panic, anger, contempt, or political scandals; it might additionally trigger political and financial instability.

The Web presents challenges to present legal guidelines which might be sluggish to supply sufficient safety to a celebration with respect to the use and content material of blogs. At present, codes of following for Web customers together with bloggers haven’t been proposed as a part of the Web regulatory regime at the moment working in Malaysia.

As a substitute, bloggers have to practice self-regulation and perceive the authorized implications of running a blog to make sure that their blogs are written in an accountable and lawful method. As a way to shield themselves, bloggers might present phrases of use and correct disclaimer to supply some extent of consolation and safety from third events postings on their blogs.

For these bloggers who should not be self-aware of the authorized dangers, efforts must be made to teach and lift consciousness to these bloggers. Maybe the social accountability lies on the Web service suppliers and web site service suppliers to create a blogger’s code of ethics to teach its bloggers to be moral in the direction of their readers, the individuals they write about, and the authorized ramifications of their actions.

First Revealed at Present Regulation Journal April Half 2 [2007] 2 CLJ i