putik lada

Netizens v the Government

2012 saw the intensified battle between netizens and the authorities. The former desires protection of their right to freedom of expression and anonymity whereas the latter desires control and governance. Through this battle, the authorities introduced many new legislations to govern the use of internet.

In July 2012, the Malaysian Government enforced s. 114A of the Evidence Act 1950 (114A). Under 114A, a person is deemed to be a publisher of a content if it originates from his or her website, registered networks or data processing device of an internet user unless he or she proves the contrary. This new law sparked a massive online protest dubbed the Malaysia Internet Black Out Day or also the Stop114A. Protesters replaced their Facebook and Twitter profile picture with the Stop114A banner whereas website operators displayed the Stop114A banner on their websites. Within two days, the Stop114A Facebook gained 43,000 likes from 400 likes (currently 49,000). It is probably one of Malaysia’s most successful online campaigns.

On the business side, the Association of the Computer and Multimedia Industry of Malaysia (Pikom), who represents the information and communications technology (ICT) industry in Malaysia, backed calls for a review of 114A whereas the Federation of Malaysian Manufacturers (FMM) has expressed concerns over the recent inclusion of 114A and its impact on businesses.

Interestingly, the Malaysian Government passed the Cyber Centre and Cyber Cafe (Federal Territory of Kuala Lumpur) Rules 2012 and Consumer Protection (Electronic Trade Transactions) Regulations 2012. The former requires any person operating a cybercafé and cyber centre to maintain a customer entry record and a record of computer usage for each computer whereas the latter requires online business owners and operators to provide their full details, terms of conditions of sale, rectification of errors and maintenance of records.

Philippines netizens also protested against their newly introduced cyberlaw. In October 2012, Philippines passed the Cybercrime Prevention Act of 2012 with the aim to prevent cybersex, online child pornography, identity theft and spamming. However, under the new act, a person found guilty of libellous comments online, including comments made on social networks such as Facebook and Twitter or blogs, could be fined or jailed. In protest against the new law, anonymous activists hacked into government websites, journalists have held rallies and many Facebook users have replaced their profile picture with a black screen. Protesters say the new law could be used to target government critics and crack down on freedom of speech.

Japan netizens on the other hand had milder protest against a new law that makes Japan-based internet users who download copyright infringing files. Violators will face up to two years in prison or fines of up to two million yen. In July 2012, about 80 masked people, calling themselves allies of the global hacker group Anonymous, picked up litter in Tokyo Saturday as a sign of protest.

In early 2012, China required users of the popular microblogging platform, Weibo, to register their real names. Subsequently, later in the year, China legalized the deletion of posts or pages which are deemed to contain “illegal” information and required service providers to hand over such information to the authorities for punishment.

On a brighter note, the South Korean Constitutional Court ruled that a law requiring South Koreans to use their real names on Internet forums was unconstitutional. The Court said that the requirement amounts to prior censorship and violated citizens’ privacy.

In the United States, a handful of US states, including Illinois, California and Maryland, passed laws making it illegal for employers to ask for potential employees’ Facebook or other social media passwords.

A person who retweets a defamatory tweet is potentially liable for defamation. In the UK, Lord McAlpine (Robert Alistair McAlpine) a former politician who worked for Margaret Thatcher, announced his intention to pursue action against 10,000 Twitter users for defamation including those who had retweeted the defamatory tweets. In this case, Lord Alphine was linked by some social media users after BBC News reported that a senior politician was involved child sex abuse. Interestingly, these users may apologize to Lord McAlphine by completing a form downloadable from his solicitors’ website!

In the UK, it is an offence to publish the identity of victims of certain offences which include rape. Footballer Ched Evans was convicted by the Court for rape of a 19 years old woman. The woman’s name was circulated on social networking sites, including Twitter and Facebook, after Evans’ conviction. 9 people were fined after admitting to revealing online the identity of the woman.

Meanwhile back home, the Kota Kinabalu High Court overturned Rutinin Bin Suhaimin’s acquittal for posting an “annoying” comment on the Sultan of Perak’s website. Rutinin was charged under s. 233 of the Communications and Multimedia Act 1998. The Sessions Court had earlier acquitted him without calling for his defence because, among others, the prosecution failed to prove that Rutinin was the person who posted the insulting comment. The Court held that, although 114A of the Evidence Act 1950 is not applicable because the alleged offending act was committed before the enforcement date of 114A, the circumstantial evidence is sufficiently strong to conclude that the accused had used the internet account that was registered in his name at the material time.

The developments in 2012 show the involvement of the authorities in clamping down the notion of the Internet being the Wild, Wild West. However, such clap down must be monitored by netizens.

In December 2012, the International Telecommunication Union (ITU) brought together regulators from around the world to re-negotiate a decades-old communications treaty. Google and 1000 over organizations around the world claimed that some governments want to use the closed-door meeting to increase censorship and regulate the Internet and had started an online campaign.

At the end of the closed-door meeting, 89 countries including Malaysia signed the treaty, while 55 countries said they would not sign or that additional review was needed.

With the new technology, websites and novel functions, all Governments will have to step out their game to protect the rights of netizens and businesses. New laws must not be onerous but in the same time protect victims of cybercrimes and preserve the right of freedom of expression.



This article was supposed to be published in the Putik Lada of The Star Newspaper. It was also supposed to be the 2013 installation of my yearly social media update articles. Unfortunately, The Star Newspaper discontinued the Putik Lada column before my article could be published.

What lies ahead for social media

Published in Putik Lada column, The Star on Friday February 3, 2012

It is going to be a tempestuous year with more developments in the social media scene, and a digital war may erupt between Internet users, companies and governments.

MALAYSIA’S social media sphere hit a milestone last year. Facebook users reached 12 million in Malaysia as at Decem­ber and Twitter users reached about 470,000 as at October.

Defamation actions and criminal charges against people for alleged misuse of social media have also become normal. There have been interesting developments in the social media and Internet legal scene.

Last year saw an increase in the use of social media by the legal profession to market their services. Some lawyers, law firms and courts have their own Twitter accounts.

Former Bar Council president Datuk Ambiga Sreenevasan (@Ambiga_S) has over 6,000 followers, international law firm Allen & Overy (@AllenOvery) has more than 6,600 followers and the US Supreme Court (@USSupremeCourt) has 23,000 followers and counting.

With such extensive use by legal practitioners, the Law Society of England and Wales issued a practice note for the use of social media by lawyers.

Back home, Cybersecurity Ma­­laysia introduced a new Internet guideline called Best Practice on Social Networking Sites (SNS).

The guideline is used as acceptable practices in usage of SNS with heightened ethics as well as in protecting the security of users and privacy needs. It is very useful for companies as guidance when drafting their social media policies.

Interestingly, the High Court of Malaya recognised that misappropriation of a domain name by a former employee is actionable under conversion of and trespass to property and breach of fiduciary duty in the 2008 case of Ogawa World Bhd & Anor v Ch’ng Wai Loong.

Normally, misappropriated Top Level domain names are recoverable through the WIPO Arbitration and Mediation Centre.

In Canada, the Su­­preme Court of Canada in Crookes v Newton (2011) delivered an important decision on the status of hyperlinks.

The Court held that creating hyperlinks to allegedly defamatory articles does not amount to a publication of defamatory information.

In India, the owners of a hotel sued Google over the auto-complete function on its search engine for defamation. When users typed the hotel’s name into Google, the word “receivership” is a suggested search term. However, the suit was later withdrawn.

“Who owns your followers?” was an issue to be determined when mobile phone website PhoneDog sued a former employee, writer Noah Kravitz, over the 17,000 Twitter followers that he had built up on a Twitter account called @PhoneDog_Noah.

Noah filed a motion to dismiss PhoneDog’s case but the US District Court ruled that PhoneDog could proceed with the lawsuit.

Many commentators are of the opinion that PhoneDog should have established a social media policy to determine the issue of ownership of the Twitter account when the account was created.

In a similar case, Eagle v Edcomm, Inc, et al., the Eastern District Court of Pennsylvania held that a former employee’s LinkedIn account be­­longed to the employer, even though the LinkedIn account contained the name, professional history and accomplishments of the employee.

Facebook had a busy year in 2011. Friendster repositioned itself as a social gaming site and discontinued its user social network accounts, leaving Facebook with one less competitor. However, Google introduced a new social networking site, Google Plus.

Facebook was subjected to a thorough and detailed audit by the Office of Irish Data Protection Commissio­ner, which gave a dozen recommendations for how Facebook can im­­prove privacy protection and data-handling practices. The audit report is available online in the interest of transparency.

Last year also saw the battle for Facebook page www.facebook.com/Merck. Merck KGaA, a German drug maker, suddenly lost its Facebook page to US rival Merck & Co.

Merck KGaA initiated an action against Facebook for details on how the page was lost. Facebook subsequently apologised to Merck KGaA for the mix-up.

We all know that it is very difficult to remove information published online. Some argue that confidential information posted online will lose its quality of confidence.

However, in AMP v Persons Unknown (2011), the UK High Court granted a superinjunction to restrain the further publication of stolen intimate pictures of a woman which were leaked online.

Arguably, this case implicitly determined the position of confidential information which has been leaked online.

On the criminal front, a US Federal Judge in USA v William Lawrence Cassidy dismissed a criminal case against Cassidy for “tweet stalking” a religious leader on Twitter.

Cassidy allegedly posted 8,000 tweets, almost all of them about the leader and her religious group, which caused the leader to claim that she had suffered “substantial emotional distress”.

The Judge held that although the tweets were uncomfortable, Cassidy’s right to tweet was protected under the US Constitution.

This year will see more developments in the social media legal scene. We may also see more Internet censorship and crackdowns on websites for sharing files – just like what happened to MegaUpload.

As a result, a digital war may erupt between Internet users and companies and governments. It is going to be a tempestuous year ahead.

Handling social media disasters

Published on 12 May 2011 in The Star Newspaper

Social media can be a powerful tool to promote your goods or services, but the online world is unpredictable and no matter how good a brand is, there will be someone hating it.

IT is now the norm for brand owners having social media network accounts such as Facebook, Twitter, Wikipedia, forums and blogs to connect with their customers.

With such social media tools, brand owners can communicate with their customers directly on queries, promotions or even in friendly banter.

In the social media world, everything is fast and any delay is a missed opportunity. One does not wait for the board of director’s approval to post a reply to a message.

But with such pace, the risk of misstatement is imminent.

Such accounts could be managed in-house or outsourced to third parties which could be digital agencies, public relations firms or freelance social media managers.

It is important to find parties which have experience in dealing with Internet users.

The recent Energizer Night Race 2011 incident is a wake-up call for all brand owners. In this case, a Facebook page was created to promote the Energizer Night Race.

Unfortunately, some glitches marred the event. Immediately after, hundreds of unhappy comments started flooding the Facebook page. Some users alleged that their comments were deleted and this resulted in more unhappy comments being posted.

Soon, bloggers started covering this incident and even Energizer hate pages were created. Individuals involved in this event were also attacked and insulted.

Energizer was merely a co-sponsor, with the event actually organised by a third party.

It took Energizer and the organiser a few days to issue an apology. Unfortunately, by then, the damage had been done. Never underestimate the wrath of angry Netizens.

Brand owners or service providers are advised to deal with complaints promptly. Complaints should not be ignored or deleted. They should be treated like any other complaint. Sometimes a short statement like, “We’ll get back to you shortly” or a simple apology is sufficient for grieving consumers.

Social media is a powerful tool to promote your brand but can also be the cause of one’s downfall. Social media disaster comes in various forms – through website malfunctions, inaccessibility, becoming uncontrollable or a misstatement by the brand owner.

The legal side also has to be taken care of. Users of social media sites should abide by and agree to the terms of use and also privacy policies.

A contract should always be in place between the brand owner and the social media service provider. A social media service contract is not far different from any normal service level agreement. However, attention must be given to certain clauses.

Brand owners should dictate the format of the content posted by the service provider. Format would include the length of postings, topics to be posted and frequency of updates. Having an inactive social media page defeats the purpose of having one.

The parties must agree to have a guideline for unacceptable postings and comments. Defamatory, spam and sexually explicit contents are some examples of unacceptable postings. Topics relating to politics, religion, race, gender, nationality or sexuality should be avoided.

If there is a need to remove offending content, it should be done immediately. However, there should be some room for minor vulgarity as it is common online.

The parties must decide what postings require an immediate response and who will flag it.

As shown by the Energizer Night Race case, there must be a contingency plan to deal with social media disasters.

There must be an obligation on the service provider to report any incident threatening the integrity of a brand. A prompt response to any complaint or threat would help avoid a massive disaster.

There is also a recent trend called “Tweetjacking”, a minor prank where a friend uses your account to post embarrassing messages. However, such a prank can be damaging if posted using a company account.

This happened in the Singapore Straits Times (@stcom) case where the Twitter handle was used to post vulgarities to its 46,000 followers. Soon, other media started reporting this incident.

The lesson learned: limit access to social media applications.

Personal data is processed during the use of social media sites. Such processes may fall within the ambit of the Personal Data Protection Act 2010 (not in force at the time of writing) and thus the obligations under the PDPA must be fulfilled.

Brand owners should consider doing a privacy impact assessment. As for how personal data is stored (Notice Principle), brand owners may add a Privacy Policy on their Facebook page (e.g. as a Tab) or blog.

Facebook Apps also collects personal data of users, which is sometimes disseminated to other users. In the United States, a company was sued for breaching privacy laws by posting online purchases of their customers on its Facebook page.

In the event of termination of a social media services agreement, the service provider should be compelled to give immediate access to the sites and deliver up all logins and passwords. This will avoid situations where a brand owner’s website becomes inaccessible.

Lastly, brand owners and service providers should discuss whether the latter should indemnify the former in the event that the former suffers damages due to the website. Ideally, the latter should indemnify the former due to the acts of the latter.

This is important especially when, for example, an employee of the social media company posts a defamatory message about another party, which results in that party suing the brand owner.

The steps are non-exhaustive and are merely to reduce the damages and risks. The online world is unpredictable and no matter how good a brand is, strangely, there will be someone hating it.

Being a case study for a social media disaster is a disaster.

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.

Personal data and the law

Published in The Star Newspaper on 5 August 2010

As the Personal Data Protection Act 2010 will be in force any time soon, data users are advised to be familiar with, and to start adhering to, its principles.

THE Personal Data Protection Act 2010 that is set to be enforced regulates the collection of personal data by parties for commercial transactions and will change the way we do business.

In brief, personal data is defined as any information that relates directly or indirectly to a data subject, who is identified or identifiable from that information or from that and other information in the possession of a data user.

A data user is basically the party using the personal data of an individual, which is referred to as data subject in the Act.

Personal data may take various forms and may be a name combined with other information, passport/identity card number, telephone number, photograph, fingerprint, or DNA.

A name itself cannot be personal data as there may be many individuals with the same name. However, where the information is combined with other information such as an address, this may be sufficient to identify an individual.

Unfortunately, the Act is only limited to personal data in respect of commercial transactions. Social media networking websites such as Facebook and Twitter, and foreign website owners are not subject to the Act.

This limits the type of personal data that are protected, for example, intimate photographs of individuals. As such data is normally not collected through commercial transactions, their distribution may not contravene the Act.

In Hong Kong, such data is covered. In an incident relating to the online circulation of nude photos of certain celebrities, the Privacy Commissioner for Personal Data decreed that such photographs are caught under the Hong Kong Personal Data (Privacy) Ordinance.

The Act sets out seven principles which a data user must adhere to when dealing with personal data. They are General, Notice and Choice, Disclosure, Security, Retention, Data Integrity and Access.

Failure to comply with any of the seven principles amounts to an offence punishable with a fine not exceeding RM300,000 or imprisonment not exceeding two years or both.

Under these principles, the collection and use of personal data must be consented to by the data subject, and steps must be taken to ensure that they are updated, correct and stored securely.

Further, adequate notice must be given to data subjects that their personal data will be used, and the purpose of the same. Data subjects should also be given the choice to opt out from giving certain personal data. Personal data no longer in use has to be destroyed.

Consent is not defined in the Act but a positive consent — written, oral or electronic — would be sufficient. However, positive consent would not apply in a scenario where a data user sends a form requesting consent and the form states that consent is assumed if no response is given. Failure to respond may not be considered as consent under the Act.

As the Act only applies to personal data in respect of commercial transactions, whether blogs would fall under its purview would depend on the circumstance of the case. If a blog is established purely for a recreational purpose, the Act may not apply due to the limitation of the definition of personal data.

A website generally collects personal data in two situations: when a user visits the website, and when a user provides information to the website operator, e.g. through an online form.

Information collected from a visitor to the website would include the IP address of the visitor and also cookies. Cookies are files used by websites to collect information about a user’s online activity. It can recognise a computer when a user logs on and can allow a website to store and remember usernames and passwords. Such information must be properly kept and not revealed to third parties.

As for the latter situation, website operators should inform the visitor that his or her information will be kept and used by them and their related parties. If website operators wish to use the information for other purposes, such as for marketing, they should obtain consent from the data subject.

Also, if personal data will be transferred outside Malaysia, consent should be obtained, otherwise any reference to the owner should be removed as it is an offence under the Act for a data user to transfer personal data outside Malaysia.

Companies need to be careful when sending out marketing materials. Under the Act, data users may be liable to a fine not exceeding RM200,000 or imprisonment not exceeding two years or both if they refuse to cease sending unsolicited marketing materials.

Following the security principle, personal data collected by website operators must be kept properly to ensure that they are not leaked. Proper security measures such as encryption must be in place.

If personal data is meant to be revealed to the public, notice should be given ahead and consent obtained. For example, a web forum should indicate to its users that information will be revealed to the public if requested. However, if the personal data is requested by a competent authority, consent may not be required.

In addition, website operators should also consider inserting a privacy policy statement on their websites in a specific page accessible by a visitor.

The privacy policy should state:

> WHAT will be done with the personal data;

> WHO is collecting the personal data;

> WHAT personal data is being collected;

> whether the personal data will be transferred out of Malaysia: AND

> whether the personal data will be disclosed to third parties.

As the Act will be in force any time soon, data users are advised to start adhering to its principles. Notice and consent of data subjects are the keys to allow a data user to use personal data. As such, data users should revise their data collecting system to be in line with the seven principles.

Unfortunately, at this stage, the extent and applicability of the Act is unknown and it seems to be wide and far reaching and, to a certain extent, excessive. In this regard, a Personal Data Protection Commissioner should be appointed soon to address these uncertainties.

In many jurisdictions with data protection legislation, the respective Commissioners play a vital role in determining the scope and applicability of the Act and will from time to time issue good practice notes or clarifications to the public.

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.

 Scroll to top