ISP liability

Blog postings can backfire

First published on The Star Newspaper on 20 January 2011.

PUTIK LADA
By FOONG CHENG LEONG

Social media influence has hit court proceedings, with lawyers trolling blogs and Wikipedia in search of material that can help them argue the case for their clients.

LAST year brought further interesting development to social media and laws all around the world. Cases making references to social media tools saw an increase.

Social media was a tool for lawyers and litigants to help parties to fight their cases. Social media was also the cause of some parties’ mortification and incarceration.

In one High Court judgment last year, the judge recognised the publication of defamatory blog postings by a husband as one of the grounds to present a divorce petition before the expiry of two years from the date of marriage.

He also recognised that a defamatory statement in a blog posting operated in a borderless realm, and would continue to exist until the maker of the blog removed it.

The challenge against the constitutionality of S. 233 of the Communications and Multimedia Act 1998, the provision commonly used against Internet users, was dismissed by the High Court.

In this case, the defendant was charged with making disparaging remarks against the Sultan of Perak during the struggle between Barisan Nasional and Pakatan Rakyat. The court held, among other things, that the section did not impede freedom of expression. S. 233 is to ensure that the freedom given by the Constitution is exercised responsibly.

The use of Wikipedia as a reference is increasingly recognised in Malaysia, notwithstanding that the reliability of Wikipedia is questionable, as anyone can add or edit an entry in Wikipedia.

Nevertheless, the reliance on Wikipedia by our courts can be traced in reported cases as early as 2007.

Last year Wikipedia was referred to in Etonic Garment Manufacturing Sdn Bhd v Kunn-G Freight System (M) Sdn Bhd [2010] 1 LNS 13 (for the meaning of freight forwarder), PP v Murugan a/l Arumugam [2009] 1 LNS 1759 (for the meaning of atherosclerosis) and Thai Long Distance Telecommunication Co Ltd & Anor v Malaysian Maritime Dredging Corpo­ration Sdn Bhd (Kuala Lumpur Suit No: D-22-352-2005, for the meaning of chart datum).

Social media influence had also hit court room proceedings. It is common in Malaysia for people, in particular reporters, to tweet live from the courts. In the United Kingdom, the Lord Chief Justice issued a guideline for the use of live text-based forms of communication from court.

In this guideline, the Lord Chief Justice approved the use of Twitter for court reporting. However, in the US, certain courts ban the use of social media by juries.

In the US case of Romano v. Steelcase Inc, 2006-2233 (N.Y. Super. Sept. 21, 2010), Kathleen Romano sued Steelcase Inc for injuries she suffered after she fell off an allegedly defective desk chair manufactured by Steelcase Inc.

As a result of the fall, she claimed, she suffered restricted movement of her neck and back and “pain and progressive deterioration with consequential loss of enjoyment of life”.

In defence, Steelcase applied to access Romano’s current and historical Facebook and Myspace pages and accounts which are believed to be inconsistent with her claims in the action concerning the extent and nature of her injuries, especially for loss of enjoyment of life. The court granted Steelcase’s application.

Similarly, in McMillen v Hummingbird Speedway Inc, et al, Court of Common Pleas of Jefferson County, Pennsylvania, Civil Division, No. 113-2010 CD, Opinion on Defendants’ Motion to Compel Discovery (Sept. 9. 2010), the plaintiff sued the defendants for injuries suffered.

The defendants claimed that posts on the public portion of his Facebook page showed that he had exaggerated his injuries. The court granted the defendants access to the plaintiff’s private portion of his Facebook and Myspace account to determine whether or not the plaintiff had made any other comments which impeached and contradicted his disability and damages claims.

Closer to home, in a reported Industrial Court case, an employee claimed that she was forced by her employer to resign.

In response, her employer argued that the resignation was voluntary and they produced extracts of the claimant’s blog which showed the claimant had written about her feelings regarding her employment with the employer.

In it, she stated that she wanted to leave the company and admitted that she went for job interviews as she had already decided to go away.

The Industrial Court chairman relied on the blog entries to find that the employee had intended to leave and found that she had gladly tendered her resignation to take on new employment.

In Australia, a hairdresser won compensation for wrongful dismissal after losing her job for making unflattering remarks about her employer on her Facebook.

In Miss Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358, Commissioner Michelle Bissett for Fair Work Australia said that posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.

It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity.

This year brings another exciting watershed to Malaysia’s social media legal sphere. The Personal Data Protection Act 2010, which governs the processing of personal data, is pending enforcement.

Proposed amendments to the Copyright Act 1987 have been drawn up in the form of a Bill to exempt Internet service providers from liability for copyright infringement under certain circumstances.

The Bill also empowers the court to order an Internet service provider to disable access to infringing material.

Furthermore, the so-called Internet Service Providers Liability Act may be passed to compel Internet service providers to take action against their users if they download songs or movies illegally.

Internet Service Provider Liability Act: Do we need one?

An analysis of the potential repercussions of the proposed Internet Service Provider Liability Act.

Recently, The Star reported that the Malaysian Parliament will be tabling the ISP Liability Act (”Act”). According to The Star, the Act makes internet service providers (ISPs) responsible for curbing online piracy. The ISP will be fined if they don’t take action against illegal downloaders.

The ISP will send two warning letters to illegal downloaders. Should the downloaders persist, their internet access will be suspended or even terminated.

It is unclear at this juncture on how far-reaching the Act would be. Will it cover all methods of downloading copyrighted materials, such as music and movies, or only through P2P file sharing software? If a user streams videos or music through a website, would they be caught under this Act? Technically in such case, there is a download of copyrighted materials into a user’s computer.

It is also unclear at this juncture on how the Act would require ISPs to monitor their users’ activities. Are they compelled to keep track of all their users’ internet activities? Or would there be a need for active participation of intellectual property rights (IPR) holders to tell the ISPs that certain IP addresses are infringing their rights, so that the ISPs can reveal the users’ details?

How it works

Making ISPs responsible for their users’ actions is not something common. Jurisdictions such as United States of America and United Kingdom have laws in place to compel ISPs to take action their users.

In some jurisdictions, IPR holders would engage a third party to monitor the internet to see whether anyone is sharing copyrighted files online. If they detect someone, they will obtain the IP address, and thereafter pass it to the relevant ISPs for them to take action against their user. If the user persists notwithstanding that warning letters have been issued, the ISPs may suspend or terminate the user’s internet access.

This is also commonly known as graduated response, or in another words the “three strikes rule”.

Repercussions

It is argued that such a law would curb online piracy. Thousands of people are dependant on the music and movie industries, and online piracy is affecting these industries severely. I do not deny that online piracy has affected these industry, but the objective of this article is to show that the repercussions of such a law are severe to internet users.

What has happened in jurisdictions containing such a law is a good indication on where the implementation of such a law will take us.

In many cases, IPR holders take additional steps against alleged online infringers. IPR holders would normally request for the identity of the internet user (normally after obtaining a Court order) from the ISPs. Some ISPs are ready to divulge such information, whereas some ISPs put up a fight. Once the identity of the user is revealed, the IPR would initiate action against the user and such active enforcement has caused terrible impact on users.

In the United Kingdom, it was reported that IPR holders will send a letter to illegal file sharers demanding payments of between GBP500 and GBP700, failing which the file sharer will be brought to Court. In the United States, a lady decided to fight it out with the recording industry instead of settling out of Court after being accused of encouraging the illegal sharing of songs. She lost the case, and was fined US$220,000. It is a classic case of David against Goliath.

Such a law will also affect internet users who do not know that their internet connection has been piggy-backed by third parties. There are many cases where users do not know that someone has used their internet connection — especially those with unsecured Wi-fi connection — and subsequently receive a demand letter for an offence they did not commit. This happened to a 78 year old man in the United Kingdom, who received a demand letter from a lawyer accusing him of downloading pornography. The 78 year old man didn’t even know what file-sharing was!

At this juncture, we do not know whether the Act would provide for a defence of innocent infringement. But the fact that one can receive a demand letter from lawyers for something that one has not done is quite frightening.

Children are now exposed to the internet at very young age. They may not know that their act of sharing and downloading music or videos will cause serious repercussions to them. A child would obviously choose to download the latest single of Justin Bieber from the internet instead of begging and pleading with his or her parents to buy it. One would argue that we ought to teach our children against online piracy. But all parents know that not all of their advice is always heeded.

In Singapore, it was reported that Odex Pte Ltd, a distributor of Japanese anime in Singapore, had issued demand letters to children as young as 9 years old accusing them of illegal downloads. Further, in the United States, 16 year old Whitney Harper was sued by the recording industry after she was found sharing music via a P2P file sharing program. She claimed that she didn’t know the program she used was taking songs from the internet illegally. Notwithstanding that, judgement was entered against her.

The enactment of the Act would also be another deterioration of our (almost non-existence) privacy rights. Malaysian laws do not recognize invasion of privacy rights as an actionable wrongdoing (see Ultra Dimenson Sdn Bhd v. Kook Wei Kuan [2004] 5 CLJ 285; Dr Bernadine Malini Martin v MPH Magazine Sdn Bhd & Ors and Another Appeal [2010] 7 CLJ 525; and Lew Cher Pow @ Lew Cha Paw & 11 yang lain lwn. Pua Yong Yong & Satu Lagi [2009] 1 LNS 1256) except in very limited circumstances (Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 655).

ISPs are the “guardians” of our rights of privacy. They hold the key to our identity in the internet. Our identity, surfing habits and internet activities are our personal data and ISPs ought to give priority of such data over commercial interest of others.

By giving access to our personal data to third parties, our privacy is at risk, and such a risk is real. Recently, ACS:Law, a law firm specialising in taking action against file sharers in the United Kingdom, had accidentally divulged information of thousand of broadband users who were accused of illegal file sharing. The information that was leaked were unencrypted Excel spreadsheets, listing the names and addresses of people that ACS:Law had accused of illegally sharing media. One contained details of customers whom they had accused of illegally sharing pornography!

In light of the ACS: Law case, some ISPs in the UK resist efforts to divulge customer details to IPR holders. I urge the same is followed by our local ISPs in order to protect internet users’ privacy.

It should be remembered that customer data is protected under the upcoming Personal Data Protection Act 2010, which provides for a fine or imprisonment or to both in the event of a breach.

Lawyers appointed to act for IPR holders should also be vigilant when dealing with internet users. Solicitors who had been representing IPR holders were subject to public humiliation and harassment by internet users.


A partner of ACS: Law, one of the main targets.

Assuming that the Act would push through in any event, I urge our local ISPs to only take action or to provide customer information to IPR holders if they are satisfied that –

1. there is strong evidence to show infringing act has been committed by user, if possible only provide information if infringement is on a large or commercial scale or for commercial gain;
2. the requester’s storage system is secure, and they have given an undertaking that information will be kept securely e.g. encrypted;
3. the requester will only use that information for the purpose of pursuing legal action only and not to published it anywhere else; and
4. the requester is compelled to give access to the information obtained from ISPs to customers to ensure that a fair case can be fought.

Closing

I am not a file sharing advocate, and I do not condone internet piracy. I am only seeking to raise awareness of the repercussions of such a law. I hope what I have mentioned above is considered by the law and policy makers.

I would like to express my gratitude to David Wang of Blogjunkie.net for raising this issue on his blog.

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