Tweet at your own risk

Published in The Star Newspaper on 21 January 2010

The explosion in Internet-based social networking – fuelled by ease of DIY publishing – is throwing up new challenges, business and legal, to the online community.

THE year 2009 marked an important year for social media networking. It brought change to politics, society and business.

Many politicians set up their own Twitter accounts to connect with the masses.

Many companies – from multinational companies to our local restaurants – set up accounts on social media networking websites to publicise their business, and even to manage consumer complaints.

Malaysian company MOL Global Pte Ltd entered into an agreement with Friendster, Inc to acquire 100% of Friendster.

Also launched was Project Alpha, Malaysia its first online TV show about Malaysian bloggers.

Social media, designed to be disseminated through social interaction, is created using highly accessible and scalable publishing techniques, Internet-based applications that build on the ideological and technological foundations of Web 2.0 and allow the creation and exchange of user-generated content.

Social media can take many different forms, including Internet forums, weblogs, social blogs, wikis, podcasts, pictures, videos, ratings and bookmarking (Source: Wikipedia). Examples of social media networking websites or tools are Facebook, Twitter, LinkedIn and Friendster.

With social media websites rising in popularity, there are now more content generators on the Malaysian online community. Publishing content, once a technical and time consuming task, has been simplified; users merely need to enter text and click a button to publish.

Is Malaysian law able to cope with such changes?

The law governing online activities remains the same. Content generated through social media websites are still governed by laws on defamation, trade mark, copyright, and as well as the Computer Crimes Act 1997, Communi­cations and Multimedia Act 1998, and so on.

Internet users should be vigilant when posting updates, blog entries, tweets, comments and emails.

Even a 140-character limit tweet may get you into trouble. For example, Courtney Love, the widow of Kurt Cobain, was sued by her former clothes designer for defamation, invasion of privacy and inflicting of emotional distress for “an extensive rant” on Twitter about how she was billed for custom clothing.

Social media websites or tools have also been used to attack others. Some users think they can hide incognito behind the screen. However, some were unmasked and had to endure severe punishment.

In 2008, in the case of Applause Store Productions Limited & Anor v Grant Raphael [2008] EWHC 1781 (QB), the claimants were awarded £22,000 in damages against Raphael, an old school friend, who had created a false personal profile of the claimants on Facebook.

Back home, in July 2009, a former bank employee was charged with posting vile and indecent material in a blog with intent to annoy another colleague. He was fined RM8,000, in default two months’ jail.

Making a complaint against malicious users is now fairly easy and can even be done online – at http://aduan.skmm.gov.my, the website of the Malaysian Communications and Multimedia Commission’s (MCMC) complaints bureau.

In the face of severe punishments, malicious users will take all sorts of steps to keep their identity secret. They may use fake names and emails, proxy servers, and also install devices to ensure that their identity cannot be traced. However, they are not safe from the long arm of the law.

In the case of The Author of a Blog v Times Newspaper Limited [2009] EWHC 1358 (QB), a blogger sought an interim injunction in the English court to restrain Times Newspapers Ltd from publishing any information that would or might lead to his identification as the person responsible for a blog.

The blogger argued that his anonymity protected him against any action being brought against him. His application failed. The judge commented that blogging is a public activity and any right of privacy would likely be outweighed by public interest in revealing his activities.

Anything posted on the Internet will stay on the Internet. It will travel and be read by other people. Nothing is ever private on the Internet.

A clear example is the case where a former high school teacher in the US was forced to resign over photos and expletives on her Facebook page. The page had photos of her holding wine and beer and an expletive.

Although one may argue that it is one’s right of privacy to have one’s personal activities protected, the law does not prevent others from doing so.

Trade marks and trade names have also been highly abused in social media websites. Many users register their username using trade marks or trade names of other companies or individuals.

Companies have had to seek legal advice on the available courses of action in restraining such action or in obtaining such names back. This resulted in hefty legal fees and also time.

In combating such problems, Facebook gave trade mark owners the opportunity to register their rights to the username before the launch of personalised username and URLs. In doing so, Facebook had taken steps to avoid any lawsuits over trade mark.

Twitter on the other hand was not so lucky. A well-known US sports figure, St. Louis Cardinals manager Tony La Russa sued Twitter over an account created in his name.

The false account posted updates that gave the false impression that the comments came from La Russa. The suit said the comments were “derogatory and demeaning” and damaged La Russa’s trade mark rights. The case was eventually settled.

The year 2010 will be another interesting year. Internet-enabled phones and data plans are offered at an affordable rate. Users can now access the Internet through their mobile devices whenever and wherever they are.

It will be interesting to see what are the new tools for online social networking, and the new legal challenges for the online community.

> The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc.

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