Blogging - Are You Exposing Yourself To Legal Liabilities?

In November 2006, Blogging Asia: Report on Windows Live released by Microsoft's MSN and Windows Live Online Services Business found that 46% or nearly half the population has an online blog [blogging phenomenon in Asia wins PRNewswire.com].

Blogging Asia: Report on the Windows Live is conducted online at the MSN portal through 7 countries in Asia and Hong Kong, India, Korea, Malaysia, Singapore, Taiwan and Thailand. Interestingly, the report finds that 56% of Malaysians blogged to express their opinion, while 49% blogged to keep friends and family updated.

This article focuses on Malaysian law, however, as it transcends boundaries and jurisdictions, therefore the laws of many countries may apply. In Malaysia, bloggers face the legal risks that carry civil or criminal liability, such as;
(a) Copyright;
(b) the trademark;
(c) defamation, and
(d) rebellion.

In addition, a blogger has to take into account other legal risks such as fraud, breach of confidentiality and misrepresentation that will be addressed in this article.

Copyright protects the way artists and writers to express their ideas or things on a piece of work, but not the fundamental ideas or facts themselves. Copyright protects originality of work and prohibits the unauthorized copying. Copyright protection is entitled to the following actions related to Article 7 (1) copyright, 1987: -
(a) literary works such as writings, novels, source codes in software and web sites and multimedia productions;
(b) musical and dramatic works, like a musical score, plays and television scripts;
(c) works of art, such as drawings, sculptures and photographs, and
(d) of sound recordings and films, such as movies (traditional celluloid and various video formats), LPs, tapes and CDs of music, drama, or lectures.

Unfortunately, a lot of copyright infringement occurring on the Internet remains unexplained. New blogs from time to time to use an existing blog for its content, and this is done by copying or linking. Additionally, setting copyright photographs, designs, pictures of products or product packaging from another website is also illegal.

there are "rules of thumb" to follow when creating or setting up facilities such as: - (a) to create their own original paintings, graphics, code and words, (b) use of works licensed under the permitted use prescribed by the owner, and (c) the use of free images off the Internet until the conditions are the creator of the image followed by

the same "rules of thumb" to apply when posting scripts as normal is a violation of copyright law and the corresponding scripts from third parties. With regard to the posts on someone's blog by third parties, the blog owner can receive the posts of a license assumed by third parties. When offering a podcast that is recorded and dowloadable audio files for download from the best blogs to podcasts does not contain copyrighted music that belongs to others, so protect yourself from any claim of copyright.

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

trademark owner has the exclusive right to use its mark in relation to its products and services, see Section 35 (1) of the Trademark Act, 1976. Trademark protection entitles the trademark owner to prevent others from using identical mark with identical goods or similar goods is likely to cause confusion in the public relations section 19th (1) and 19 (2) of the Trademark Act, 1976.

How to break a sign of belonging to a blogger to another? One example is when a blogger posts links to the logos belong to the trademark owner. When a visitor clicks on the mark that will directly lead visitors to the blog blogger instead of directing visitors to the trademark owner of the website.

Such a connection may cause confusion or deception as it seriously increases the risk that the blog in some way associated with or related to the trademark owner'sproducts and services.

Generally, the term defamation applies to false statements about someone or an organization that is harmful to their reputation. The person publishing the statement must know or should have known that the statement was false. Although the Internet provides an arena in which the offending statement 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 material and broadcast by radio or television. Since the law applies to material published or broadcast, therefore generally refers to materials such as blogs and web pages that are published on the Internet.

As the defamation law of the complex there is a need to distinguish whether the statement was defamatory libel (written) or slander (spoken word). In the case of libel, if it is determined that the statement was defamatory, then there are the assumptions against the author or publisher. In the case of defamation, there is often a requirement that proof of actual damages or special damages suffered by the offensive statement. Thus, the law of defamation does not apply to blogs because they do not fall within the ambit of the slanderous words broadcast by radio or television.

Because of the rapid changes in Internet technologies and mergers, it will ask whether the courts will apply the law of libel or defamation law when blogs are converted from text to speech as transmitted on the Internet. However, it all depends on proving libel and finding the identity of bloggers who can be a huge task because of the anonymity of the Internet and global scope.

Another legal risk when blogs are used to spread false, incomplete or misleading information regarding the racial disturbances or activities that cause hatred or contempt for the government or ruler. In Malaysia, various offenses are set out in the rebellion of 1948 as it is a criminal offense for any person to print, publish or distribute any seditious publication, see 4 Act riots of 1948 for other offenses. Are the provisions of the Act apply to publications on the Internet are not established by court decision.

In Singapore, the law applies to rebellion in 2005, where the Singapore Court of jail two users to set seditious remarks on the internet and two prison for "rebellion" on the Internet, the South China Morning Post, Saturday, 8 October 2005.South China Morning Post reported that the case is considered a landmark case highlighted the government's attempts to regulate online expression and crack down on racial intolerance. In two cases represent the first time Singapore has prosecuted and convicted for racist expression under the Act riots.

arising from the case of racist bloggers, 8 Singapore in November 2006 the Government proposed amendments to its Penal Code, taking into account the impact of technologies like Internet and mobile phones, refer to the Singapore Ministry of Internal Affairs, Consultation Paper on proposed amendments to the Criminal Code on the 2nd page. The amendments include offenses committed via electronic media, such as Section 298 (spoken word, etc. with deliberate intent to hurt the religious feelings of any person) to cover the wounding of racial feelings, as well as, Section 499 (defamation) and Section 505 (statements conducing to public jokes) to expand and include those "published in written form, electronic or other media" see Singapore Penal Code (Amendment) Bill on pages 8 and 20. These amendments when passed to strengthen the police and prosecutors to prosecute those with the 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 the people who participated in Blogging Asia: Report on Windows Live survey believe that the blog content as a reliable and traditional media, and a quarter of respondents believe blogs to be the fastest way to learn about the latest and current affairs.

With such a reliance on blogs, content containing false, incomplete or incorrect information posted on blogs can not only cause panic, anger, contempt, or political scandals,. It can also cause political and economic instability

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

Instead, bloggers must practice self-regulation and understand the legal implications of blogging to ensure that their blogs written in a responsible and lawful manner. To protect themselves, bloggers may provide for conditions of use and proper cue to offer some degree of comfort and protection from third-party posts on their blogs.

For those bloggers who are not self-aware of legal risks, should seek to educate and raise awareness of these bloggers. Perhaps the social responsibility lies with the ISP and web service providers to create a Blogger's Code of Ethics to educate its bloggers to be ethical in relation to its readers, people write about the legal consequences of their actions.

First published in the April issue of Current Law Part 2 [2007] 2 CLJ and