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Blogging – Are You Exposing Yourself To Legal Liabilities?

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

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

This text focuses on Malaysian legislation nonetheless 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 legal liabilities corresponding to;

(a) copyright;

(b) trademark;

(c) defamation; and

(d) sedition.

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

Copyright protects the best way artists or authors categorical their thought or truth on a bit of labor however not the underlying thought or truth itself. Copyright protects originality of the work and prohibits unauthorised copying. Copyright safety is eligible for the next works check with Part 7 (1) of the Copyright Act, 1987:-

(a) literary works, corresponding to written works, novels, supply codes in laptop program and net pages and content material in multimedia productions;

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

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

(d) sound recordings and movies, corresponding to movies (conventional celluloid and varied video codecs), information, tapes and CDs of music, drama or lectures.

Sadly, a lot of the copyright infringement occurring on the Web goes undetected. New blogs at occasions use current blogs for its content material and that is completed by means of copying or linking. Other than that, posting copyrighted images, designs, product photographs or product packaging from one other web site can also be unlawful.

There are “guidelines of thumb” to comply with when creating or posting contents corresponding to:- (a) create one’s personal unique picture, graphic, code and phrases; (b) use licensed works inside the scope of permitted use laid down by the proprietor; and (c) use free photographs 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 legislation to applicable programming scripts from third events. On the subject of postings on one’s weblog by third events, the weblog proprietor might obtain an implied licence to the postings made by third events. When providing podcast i.e. recorded and dowloadable audio file to be downloaded from blogs it’s best that the podcast don’t comprise any copyrighted music belonging to others thus defending oneself from any copyright infringement fits.

If copyright protects the best way concepts or information are expressed, trademark however protects phrases, designs, phrases, numbers, drawings or footage related to services.

A trademark proprietor enjoys unique proper to make use of his mark in relation to his services refer Part 35 (1) of the Trademark Act, 1976. Trademark safety grants proper to the trademark proprietor to forestall others from utilizing an identical trademark with an identical items or related items that’s more likely to trigger confusion to the general public refer Part 19 (1) and 19 (2) of the Trademark Act, 1976.

How does a blogger infringe trademark belonging to a different? One instance is when a blogger posts hyperlinks on logos belonging to a trademark proprietor. When a customer clicks on the trademark it is going to immediately lead the customer to the blogger’s weblog as a substitute of directing the customer to the trademark proprietor’s web site.

Such linking might trigger confusion or deception because it raises severe danger that the weblog is in a roundabout way linked with or associated to the trademark proprietor’sproducts and providers.

Usually, the time period defamation refers to a false assertion made about somebody or a corporation that’s damaging to their status. The particular person publishing the assertion should have recognized or ought to have recognized that the assertion was false. Whereas the Web gives the sector wherein defaming assertion will be made or revealed, there isn’t any particular laws that offers with defamation on the Web in Malaysia.

In Malaysia, the Defamation Act, 1957 applies to publications in printed supplies and broadcasting by means of radio or tv. Because the legislation applies to revealed or broadcast supplies, therefore in precept it applies to supplies corresponding to blogs and web sites revealed on the Web.

As defamation legislation is complicated 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 creator or the writer. Within the case slander, there’s usually the requirement to proof precise damages or particular damages suffered because of the defamatory assertion. Therefore, slander legislation doesn’t apply to blogs because it doesn’t fall inside the ambit of broadcasting the slanderous phrases by way of radio or tv.

On account of fast modifications to the Web and the convergence of applied sciences, one will ponder whether the courts will apply the libel legislation or slander legislation when blogs transformed from textual content to speech format are transmitted on the Web. Nonetheless, all this will depend on proving defamation and discovering the identification of the blogger which will be an unlimited job because of the anonymity of the Web and its worldwide scope.

One other authorized danger is when blogs are used to disseminate false,incomplete or deceptive info concerning racial disturbances or contents that trigger hatred or contempt in the direction of the federal government or the ruler. In Malaysia, varied offences are offered for within the Sedition Act 1948 corresponding to it’s an offence for any particular person to print, publish or distribute any seditious publication- see Part 4 of the Sedition Act, 1948 for different offences. Whether or not the provisions within the Act apply to publications on the Web haven’t been judicially decided.

In Singapore the sedition legislation was utilized in 2005 the place the Singapore court docket jailed two customers for posting seditious remarks on the Web- Two jailed for ‘sedition’ on 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’s makes an attempt to control on-line expression and crack down on racial intolerance. The 2 instances represented the primary time Singaporeans had been prosecuted and convicted for racist expression beneath its Sedition Act.

Arising from the case of the racist bloggers, on 8 November 2006 the Singapore Authorities proposed modifications to its Penal Code bearing in mind the impression of know-how such because the Web and cellular phones- check with Singapore Ministry of Residence Affairs, Session Paper on the Proposed Penal Code Amendments at web page 2. The amendments cowl offences dedicated through digital medium corresponding to Part 298 (uttering phrases, and many others with deliberate intent to wound the spiritual emotions of any particular person) to cowl the wounding of racial emotions as nicely, 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 these with offending blogs- Cf.Sections 298, 499 and 505 of the Malaysian Penal Code (Revised 1997).

There are the explanation why the authorities are taking running a blog critically as half of the those who took half within the Running a blog Asia: A Home windows Stay Report survey consider that weblog contents are as reliable as conventional media and 1 / 4 of the respondents consider blogs to be the quickest method to study information and present affairs.

With such reliance on blogs, contents 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 current legal guidelines which might be gradual to offer enough safety to a celebration with respect to the use and content material of blogs. At present, codes of apply for Web customers together with bloggers haven’t been proposed as a part of the Web regulatory regime presently working in Malaysia.

As an alternative, bloggers must practise self-regulation and perceive the authorized implications of running a blog to make sure that their blogs are written in a accountable and lawful method. With a purpose 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 self-aware of the authorized dangers, efforts must be made to teach and lift consciousness to these bloggers. Maybe the social duty 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 folks they write about and the authorized ramifications of their actions.

First Printed at Present Legislation Journal April Half 2 [2007] 2 CLJ i

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