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.

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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