Minimising the risks in blogging

Published in The Star Newspaper on 8 January 2009.

BLOGGING has become the new way of life of Malaysians. It is without doubt a new form of media where a large number of the public refer to these days in addition to the mainstream media.

With this comes responsibility. It is settled that bloggers are liable for what they say and for what other people post on their blogs. The following laws are applicable to bloggers:

> Civil and criminal defamation;
> Sedition;
> Communication and Multimedia Act 1998; and,
> Copyright infringement.

The above list is not exhaustive and it is hoped that the following will serve as a short guide to minimise the risks of blogging.

One of the most common actions brought against website owners (which include a blogger) is a defamation suit. The definition of defamation is not a static concept.

It has been defined that a statement may be defamatory when it tends “to lower a person in the estimation of right-thinking members of society generally” or “to cut him off from society” or “to expose him to hatred, contempt or ridicule”.

Defamatory statements may not only arise from written postings but also from videos (embedded in the blog), pictures/drawings/graphics, sound and even hyperlinks. Recently, a Malaysian High Court held that a website owner is liable for a hyperlink posted by a commentor that links to a website containing a defamatory statement.

The consequence of being liable for defamation is grave. It can drain you financially and make you a bankrupt. It can even put you in jail if it falls under criminal defamation. Even a food review blogger can be subject to a defamation suit. Thus to avoid such problems, the following steps are recommended:

> Avoid potentially defamatory statements;
> Moderate comments;
> Identification of commentor’s details;
> Warning to commentors;
> Disclaimer;
> Disable Cache; and,
> Anonymity.

The most obvious, and the most important, step to take from being slapped with defamation action is to avoid defamatory statements.
Always ensure that what you write is true. If you are unable to verify the truth of a statement on your blog, junk it. Avoid criticising other people on your blog, as sometimes the criticism can be taken as defamatory.

Another type of entry you should avoid is rumour-based entries. It is advisable not to repeat a rumour made by others, unless you can prove it.

As mentioned earlier, what got many website owners into trouble is what their readers posted. And website owners are liable for comments made by other parties published on their website.
In this regard, website owners can be subject to an application to the court compelling them to reveal the identity of the commentor. It should not be much of a problem to website owners to reveal the identity, but sometimes the order goes a bit further than that.
For example, there were cases where website owners were compelled to reveal Malaysian identity card numbers of their commentors, and also slapped with costs payable to the complainant.

Thus, it is useful to set up a system to filter comments and require commentors to register themselves before they can submit comments. Alternatively, the website owner may have in place a stringent approval system where comments will only be posted upon approval.
Further, you may also reveal the details of the commentors such as their Internet Protocol (IP) address, time of posting and e-mail address on the website upon the posting of the comment.
By revealing such details, the commentors can be traced through their Internet service provider, etc. This may restrain commentors from posting malicious comments.

It would also be useful to place a warning stating that commentors are liable for what they say or that you will reveal their details to the authorities upon request. The warning can be fortified with a disclaimer, which could be useful to discourage defamatory statements.

The disclaimer can go along these lines: “The comments contained on this blog reflect the views of the author and do not in any way represent that of the owner of this blog.” This serves as notice that the views of the commentors are not shared by the blogger.
Many consider websites such as WayBack Machine and Google Cache as God‘s gifts to computer geeks. These websites keep a record of your website and are quite useful when you lose the contents of your website. You can retrieve some of your lost documents from there.

But this also means that anyone can retrieve anything deleted from your website, including defamatory statements that had been removed. But not to fear, for there is also a special option where you can stop these websites from keeping a record of your website.
If all the above fail to avoid a letter of demand or you just wish to have a carefree blog, then try blogging anonymously. This would include setting up a blog using a pseudonym with no trace of the person’s identity on the blog. Some do it for their own protection, and some do it so that they cannot be found.

Although distasteful, this allows bloggers to avoid being discovered and to post entries without any restriction. But if caught, they will suffer grave repercussion. In a recent Canadian court decision, anonymous electronic postings of defamatory material were not only actionable but would also warrant a high damages award.
With the upcoming High Speed Broadband (HSBB) rollout, we can expect more content-rich blogs. With this, the dissemination of information may expand to methods which are unknown to us now. There will therefore be new laws and challenges ahead.

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.

ChipsMore v Chipsplus: Now you see it, Now you don’t.

Published on 30 July 2010

DANONE BISCUITS MANUFACTURING (M) SDN BHD v. HWA TAI INDUSTRIES BHD

The Plaintiff carries out the manufacture, distribution and sale of, among others chocolate chip cookies bearing the trade mark ChipsMore. The ChipsMore cookies have been sold in Malaysia since 1990 and are also exported to other countries in the region.

Sometime in 2001, the Plaintiff discovered that the chocolate chip cookies manufactured by the Defendant which were being sold in the market bearing the trade mark “Chipsplus” and a get-up and packaging which, according to the Plaintiff, were confusingly similar with the Plaintiff’s ChipsMore trade mark, get-up and packaging.

The Plaintiff through its solicitors, requested the Defendant cease and desist from its unlawful act. However, the Defendant through its solicitors denied the same and continued with the said unlawful acts. The Plaintiff then brought an action against the Defendant claiming trade mark infringement and passing off.

The High Court held the following:

(1)               There can be no doubt that there is the indistinguishable phonetic representation of the prefix ‘chips’. For another, while “Plus” and “More” are two different words, there is a sufficient resemblance in idea. In deciding similarity between two words, the words have to be considered as a whole. When comparing the two words to see whether one would be confused with and mistaken for the other, the words should be compared as a whole and not merely comparing syllable, and that regard should be paid to the fact that the word is to be used upon goods similar to those upon which the other party is being used. The true test is whether the totality of the trademark is such that it is likely to cause mistake, deception, or confusion.

(2)               In comparing both the marks, the Court observed and found as follows:

(i)                 The identical phonetic representation of the prefix “Chips”;

(ii)               The similar import of the suffixes “Plus” and “More”;

(iii)             The omission of the space between the two individual words “Chips” and “Plus”, corresponding to omission of the space between the two individual words “Chips” and “More”;

(iv)             The larger letter “C” of the prefix and “P” of the suffix compared to the rest of the Chipsplus trade mark, corresponding to the larger letter “C of the prefix and “M” of the suffix compared to the rest of the ChipsMore trade mark; and

(v)               The similar stylized double perimeter around the alphabets of both trade marks.

(3)               Having regard to the totality of the circumstances of the case and comparing the two marks with their features, the mark ‘Chipsplus’ used by the Defendant so nearly resembled the Plaintiffs trade mark ‘ChipsMore’ as to be likely to cause confusion. The similarity between the two marks was great that there was a high likelihood of confusion ensuing if any purchase of chocolate chip cookies was made by reference to the marks. As the Plaintiff had not authorized or licensed the Defendant to use that registered trade mark, the use of the Chipsplus trademark by the Defendant for identical goods, namely, chocolate chip cookies amounted to infringement of the Plaintiff’s registered “ChipsMore” trade mark.

(4)               The Plaintiff here had acquired substantial goodwill and reputation in its business and trade in chocolate chip cookies bearing the ChipsMore trade mark, get-up and packaging. The Plaintiff was entitled to the exclusive use of the ChipsMore trade mark, get-up and packaging in connection with chocolate chip cookies to the exclusion of others including the Defendant. Based on the evidence adduced, the Plaintiff had goodwill and reputation in its ChipsMore trade mark and the packaging of the ChipsMore chocolate chip cookies by having the ChipsMore trademark in a wavelike manner, with the colours blue and yellow on the packaging.

(5)               The Court examined the Plaintiff’s Chipsmore trade mark, get-up and packaging and the Defendant’s Chipsplus trade mark, get-up and packaging. In comparison, the Court found the following:

 

No Plaintiff’s ChipsMore Defendant’s Chipsplus Observation by the court
1. Plastic Packaging of rectangular shape containing the chocolate cookie. Plastic Packaging of rectangular shape containing the chocolate cookie. The plastic packaging is similar
2. The ChipsMore trade mark The Chipsplus trade mark 1. Chipsplus is in capital letters

2. The Prefix is same

3. The Suffix is different; similarity in idea.

4. The letter C and P of Chipsplus are designed similar to ChipsMore’s C and M.

3. The placing of the ChipsMore trade mark in a wavelike manner The placing of the Chipsplus is curvy There is similarity in the way the trade mark is being designed, be it wavelike or curvy.
4. The house mark “Danone” printed on the upper left hand side of the front of the packaging as well as its sides The house mark “Luxury” is printed on upper left of the front packaging The placing of both house marks at the upper left are the same.
5. The colour yellow is applied to the whole of the packaging including the front and back. The yellow colour packaging is used The yellow colour used by both marks are very similar
6. The chocolate chips scattered across the packaging concentrated mainly on the right of the packaging and tapering off towards the left of the packaging 3 pieces of chocolate chips cookies for front panel and 2 pieces of cookies for side panel are depicted on the packaging to give effect to the contents of the packaging. 1. The placing of a picture of the brand’s chocolate cookies in both trade marks is similar.

2. Both trade marks are placed on the right side of the packaging.

7. A blue swathe spanning across the packaging from left to right. There is blue swathe in the packaging. The blue swathe bears similarity in both marks.

(6)               The Defendant’s Chipsplus trade mark, get-up and packaging were confusingly and deceptively similar to the Plaintiff’s ChipsMore trade mark, get-up and packaging. The striking similarities rendered the trade and public to be confused as they are identical goods and the likelihood of confusion between the two products was extremely high. The ChipsMore trade mark, get-up and packaging had become distinctive of the Plaintiff’s product and the use by the Defendant of similar trade mark, get-up and packaging was likely to deceive or cause deception or confusion to a potential buyer of chocolate chip cookies. As the chocolate chip cookies of the Plaintiff and Defendant are in direct competition with one another, the court would infer likelihood of damage to the Plaintiff’s goodwill through the loss of sale. Thus the Defendant has passed off its products as the products of the Plaintiff.

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