Communications and Multimedia Act 1998

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.

Tweet below the law

Featured in The Star Newspaper on 8 August 2010

Sunday August 8, 2010
Tweet below the law

By JOSEPH LOH
sunday@thestar.com.my

Social networking sites such as Facebook and Twitter have allowed people to easily let others know what is on their minds. But users should be careful with what they post because the laws of the land apply to cyberspace as well.

THE Internet is increasingly becoming a virtual soapbox for people to vent their thoughts – and sometimes frustrations and dissatisfaction. The proliferation of blogs, discussion groups, and more recently, social networking, have emboldened many – with the assumption that making comments from behind a screen shields them from any legal repercussion.

However, the long arm of the law extends beyond solid ground, and reaches into the virtual realm as well.

According to H.R. Dipendra, from the Malaysian Bar Council’s human rights committee, there is no distinction between comments posted on the Internet and traditional print media.

“Internet posts are subject to similar laws as that of print media, aside from the Communications and Multimedia Act 1998 (MCMC Act) and Printing Presses and Publications Act 1984.


False sense of security: People on social networking sites and blogs tend to say more than they do in real life, thinking they can do it anonymously.

“You have to be careful what you write, and not just post what comes off the top of your head. If you know it to be inflammatory, then you should be careful,” he says.

Eddie Law, blogger and founder of elawyer.com.my and laweddie.com.my says that the www header is not an acronym for the wild wild west.

“Some think they can post or write anything, but that is not true,” he says.

Examples of legislation (see chart) include the Sedition Act, Internal Security Act, as well as civil and criminal defamation laws – all of which have previously been invoked to bring an individual to court, most famously in the cases involving blogger Raja Petra Kamarudin.


Dipendra

More recently, DAP member Teng Chang Khim was summoned to appear before the party disciplinary committee for a Twitter message that read “OMG! Real culprit freed.”

Dipendra says what has happened to Teng is fascinating, but does not believe anything will come out of it.

“His statement is not defamatory as it does not specifically refer to any particular person. It is a general opinion on a general matter,” he says.

Posting news content on Internet blogs, for example, is in some way similar to what mainstream news journalists do, but Law feels that bloggers are at a distinct disadvantage.

“They do not have proper media training or resources to help them determine what they are doing is legal.”

He opines that as social networking and blogging activity is still relatively new, there is little legal precedent to follow and there are many issues yet to be tested in court.

“The wording of the MCMC Act (Section 233 and 211) is very broad, and there is a lot of uncertainty. Because it is not yet tested, you can be snagged if its wording can be defined to suit your case,” he says.

Dipendra shares a similar opinion, and believes that when the law was drafted, it was intentionally broadly-worded.


Law

“It can be of any mode, medium or application – SMS, iPad or Twitter – so long as you type out a comment and post it, you will fall within the ambit of the two sections.

“The law is broad enough to include everyone, even an innocent disseminator,” he says.

However, he does not think it is a bad law.

“It may be uncertain and ambiguous, but not bad law. It gives enforcement agencies a lot of leeway so they would have the unfettered discretion for its use. The only question is if this discretion is used fairly,” says Dipendra.

Anonymity not guaranteed

Foong Cheng Leong, from Lee Hishammuddin Allen & Gledhill’s intellectual property department, says that people tend to say more than they do in real life, thinking they can do it anonymously.

“They think they can get away with it, but they may still get caught,” he cautions.

He gives the example of the Stemlife Bhd v Bristol-Myers Squibb (M) Sdn Bhd case. The co-defendant, Arachnid Sdn Bhd, who provided website maintenance services, was ordered to reveal the names of the persons who posted disparaging remarks against the plaintiff.

However, in a separate defamation suit involving the same parties, the judge struck out the suit against Arachnid, as it had never played an active role in respect of the content of the comments posted on the website.

There was another case where the defamatory contents of a website were deleted, but the lawyers were able to find the offending page using archived pages on waybackmachine.com.

“Simply deleting the page is not a defence, as the damage may have already been done. In a way, it is like destroying the evidence,” says Foong.

However, Law says web service providers need immunity from content posted on their website, something that United States law provides for in Section 230 of its Communi­cations Decency Act.

Foong informs that a similar “safe harbour” provision is being drawn up in Malaysia, and the same kind of immunity may later be found here.

Dipendra also says that what is posted on cyberspace stays there forever.

“Something that you said 10 years ago on a website may resurface, and you may have no recollection of even writing it.”

While existing Malaysian law appears to cover cases of wayward online behaviour at the moment, there are some who feel that there is a need for the law to be reformed.

Sonya Liew of the Bar Council explains that the world is currently undergoing both a revolution and evolution at the moment.

“Just like how there was the industrial revolution before, now we are having an information revolution,” she says.

She explains that during the agrarian age, laws were formed to protect the land, and during the industrial age, to protect intellectual property with laws regarding copyright and trademarks, for example.

“Laws regarding sedition and secrets were passed many years ago, before the information revolution. But now, society has evolved beyond this,” she says, adding that the people’s expectations regarding the right to information have evolved – together with technological advances.

“The whole world now has information at its fingertips, and if you withhold information, people start to question the lack of access to it.

“People expect information, and the question is if existing laws are sufficient to provide for the needs of a modern society,” says Liew.

She notes that signs of this can be seen in the increasing call for freedom of expression and the right to information.

“Later, we will hear of even more rights that we have not even heard of before, and it may even eat into the right to privacy,” she says, explaining that this may arise as people may want to know more about government officers’ or politicians’ lifestyle – in order to reduce graft.

“Laws exist to serve society, and society does not serve the law. We have this need now, and the question is if the Government is doing enough to provide for this need,” says Liew.

Any significant legal reform on the use of the Internet is not yet on the horizon, and until then, social networkers and bloggers should be vigilant on their online behaviour.

“People should behave the same way online as they would in real life. If they do not shout and curse in public, then their behaviour should remain the same online. They should not wear a different hat in cyberspace,” says Law.

Foong succinctly describes the appropriate online behaviour with a biblical quotation – which is still as relevant today as it was 2,000 years after it was uttered.

“Do unto others as you would have them do unto you,” quotes Foong.

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.

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