Handling social media disasters

I wrote the article below for the Putik Lada column in The Star. It was published on 12 May 2011. Chekkit!

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.

Interview on BFM – 2.3.2011

My firm hooked me up with BFM radio station when BFM was looking for a lawyer to speak about social media.

If you’re wondering who and what is BFM. It’s a radio station with a focus on business. They interview people from various industries daily and even have programs on how to improve your business. I listen to it everyday.

Barely 5 hours of sleep I marched to BFM’s office for my interview and arrived there at 645am.


It was still dark when I got there.

There was only 5 people in the entire office at that time and they were already on air! I didn’t know that you can run a radio program with 5 people.

Khoo Hsu Chuang was my interviewer. He is one of my favourite BFM DJs. I love it whenever he shoots interviewees when they evade or doesn’t answer his questions. But I got a little bit worried when I found out that he was my interviewer. Heh

Chuang and I had a short discussion on the topics to be discussed. I was warned not to swear otherwise they would have to use the “dumb” button to censor me. Hehe. It was difficult for me not to swear!!

You can listen to my interview below. Here’s a synopsis of the interview.

… discusses the legal aspects of social media, focusing in particular on online defamation, admissibility of online data in courts, cybersquatting, domain disputes, and whether there should there be regulation of the Internet and social media, whether directly or indirectly.

He also discusses the fine line between fair Internet policing and control over the Internet, proposed Amendments to the PPPA and the perceived threats to online publications and bloggers.

He also talks about the Malaysian Personal Data Protection Act 2010 (not in force yet) and explains its implications for the ordinary layman.

It was the first time I had to speak live on national radio. Some of the topics can be quite sensitive especially when it comes to Government plans. I have to tip toe the line. I rather be seen as apolitical.


After the interview was done, I took some pictures with Chuang and producer Chun (on the right).

It was definitely a good experience. I initially thought not many people listened to it as it was so early in the morning. However, I was surprise that some of my friends were listening to the radio. Some even tweeted questions to me!

Coincidentally, on the next day, I was invited as a guest at the NTV7 Breakfast Show. Will blog about it later!

Life Online Show 16: Naughty things

I was invited as a guest to speak at the Life Online Show podcast #16 (also known LOLShow a Malaysian podcast on social media and all things on the web) specifically on the amendment to the Printing Presses and Publications Act 1984 (PPPA). If you recall, the Government recently announced that it has plans to expand the ambit of the PPPA to cover online newspaper. This means anyone running an online news portal would need to register themselves under the PPPA failing which they will run foul of the PPPA. This would also mean that the life or death of the online news portal would depend on the Government. The online news portals’ impartiality may be affected by this.

Other than PPPA, the following topics were discussed with host John Lim, David Wang from theclickstarter.com, David Lian from Text100, journalist Niki Cheong:

1) Groupon coming into Malaysia by acquiring GroupsMore.com

2) Google establishing a bigger foothold in Malaysia with an office in KLCC.

3) The Malaysian Prime Minister has sent citizens Chinese New Year greetings, but how did he get their e-mail addresses in the first place?

Blog postings can backfire

My article, originally titled “Social Media Development 2010” (title was changed by The Star as usual), was published in The Putik Lada column of The Star Newspaper on 20.01.2011. You can check it out at this link.

You will notice that I did not mention the names of the Malaysian cases. I initially was torn whether to post the names of the cases as it may cause a little embarrassment to those involved in the cases.

The cases were no doubt in public domain as they were reported in, among others, legal journals – which is widely known to the legal circle.

However, by publishing them in The Star, this would highlight the cases to the general public. Niki Cheong was kind enough to advise that if the disadvantages of posting of names outweigh the benefit, I shouldn’t put them.

Anyway, for the benefit of those interested to know the sources of my article, you can click on the links above. My blog doesn’t have the same readership as The Star newspaper so chance of embarrassing the parties involved is slim.

Blog postings can backfire

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.

The Year 2010 at a Glance

2010 went by like a breeze. I must say it has been a good year overall – although there had been some downs. Work was enjoyable, got promoted, parents are well, A and I hit our 3 years mark, got featured in newspapers and media and so on.

I read from somewhere that one should always look back on what has been achieved throughout the year and vow to achieve better next year. It is also good to reminisce the good and bad times in a year.

Here’s a summary of it. Click on the links for the full story 😀

In January, I got featured in Astro B.yond TVC together with other fellow bloggers.


Looolllinnnggg

In the same month, my 2nd article on Putik Lada was featured in The Star. I wrote about Social Media and Law

The entry was retweeted many times and got me a cool 400 page view! I’ll be writing another article on Putik Lada again in January – stay tuned!

April wasn’t a good month as I had a streak of bad luck. It started off with a RM100 parking fine. Then Mum had an accident, my car broke down in Court and got towed, tyre was punctured and petrol leaked from my car thereafter!

But the month of April was an eye opener. Jamie Toh broke “the world record” by finishing 10 sticks of raw siham cockles.


PURE RAW COCKLES SOAKED IN BLOOD!

May marks the death of my brother in law. May his soul rest in peace.

On the same month, I travelled to Boston to attend the International Trade Mark Association conference. In the meantime, I stopped by New York City.

I met up with Timothy Tiah and fourfeetnine there as well.

You can read all my entries on NYC and Boston here.

June sparked my interest in Data Protection. I was featured in The Star newspaper in an article entitled Keeping it Private.

It spearheaded me in this data protection field and got invited by various organisations to talk about the impending Personal Data Protection Act 2010. I did probably around 15 talks on this topic alone. Work started trickling in after all these talks.

Data protection wasn’t the only topic I spoke about. I spoke about social media as a panelist in the Asian Blogger & Social Media Conference with other fellow bloggers fehmes Niki Cheong, Kenny Sia and KinkyBlueFairy.

Right after the conference, I was featured in The Star newspaper in the article “Tweet below the law

September is the month where civilians p4wned a robber. The security guards at my area caught a robber and got the robber’s picture published in a leaflet!

In November, I was featured in Klue magazine as one of Malaysia’s Top Ten Hottest Bloggers.

It was embarrassing -___-

Later in that month, the KL Bar IT Committee organised the IT Law Forum @ KDU College of Law and Business on 12.11.2010. Organising it wasn’t easy. We had so many twists and turns.

In the end, it went well!

December was an entry busy month for me. Although I took the entire month off to clear my leave, I had to go to the office everyday. Gah.

Anyway, I look forward to 2011. Happy New Year everyone!!! Have a great year ahead!

IT Law Forum on 12.11.2010

The IT Committee of the KL Bar, having organised two successful “mini” Forums on “Blogging & Defamation Law” and “Identity Theft in CyberSpace” in 2008, mooted a third Forum in 2009 but due to unforeseen circumstances, could not proceed with it. Intending to go beyond organising seasonal forums, the IT Committee embarked on this IT Law Forum some six months ago in the hope of making it an annual affair with the primary purpose of creating a platform for exchange of views and expansion of knowledge on areas of law related to IT.

This Forum, hosted at the KDU Law School, will see 3 topics being discussed. The opening topic concerns the discussion of imposing Internet Censorship in Malaysia. Borrowing the Chinese Government’s internet censorship’s nickname, ‘The Green Dam’, the topic is called, “The Green Dam – Internet Censorship…a Cat & Mouse Game?”. The principle discussion would be the legality of imposing such a “Dam” and the extent of censorship, if it ever happens in Malaysia. The IT Committee has long taken a stand that censorship on the internet is strongly disapproved. Instead, the appropriate approach would be to educate internet users on what should or should not be said on the Net. The speakers for this topic are Steven Gan of Malaysiakini, Jagdish Singh of Internet Society and H.R. Dipendra, an Advocate and Solicitor.

Another ‘hot’ topic up for discussion is the newly legislated Personal Data Protection Act. Professor Abu Bakar Munir of University Malaya, a leading academician on this area of law will be presenting his views on this new Act. It will be interesting to hear the views of the other delegates as well. This new Act has far reaching effects on the way Commercial businesses do their work and Professor Abu Bakar would be able to help elucidate on that.

The final topic will see a discussion on the future of Social Media. Recently, Newspapers in US and UK announced losses in advertising revenue. Advertisers now see the Social Media as an alternative place to advertise and this forum may discuss on that issue. The speakers would also likely discuss about the current status of social media in their industry and also the future of social media in Malaysia. This topic has attracted some top speakers, namely Nicholas Chay of Nuffnang, a social media advertising company with offices in Malaysia, Singapore, Australia and Philippines, well known blogger cum journalist Niki Cheong from The Star Newspaper and Azizi Jennis, Head of Online of DiGi.

There will be an Opening Address by Y.B. Dato’ Seri Utama Dr. Rais Yatim, Minister of Information, Communication and Culture.
Details of the Forum are:

Date
12 November 2010 (Friday)
Time
8.00 a.m. to 4.00 p.m.
Venue
KDU University College
Section 13 Campus
76 Jalan University
46200 Petaling Jaya

RM50 per participant. Only 100 seats available. Registration must be accompanied with payment to guarantee your place and strictly on a first-come, first-served basis. Click here for the registration form.

—————————————————

I will be moderating the Future of Social Media session. Space is running out hence please sign up as soon as possible!

Tweet below the law

This time round, I’ll digress from food entries to an entry regarding legal mambo jumbo. This is old news but I thought this article is useful for internet users. I was featured in this article published in The Star. Many thanks to Nikki Cheong for hooking me up with Joseph (the journalist who wrote this piece).

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.

Other articles which I was featured can be seen at:
xes.cx – eLawyer Law Conference 2009 – Blogging & Law
xes.cx – Featured on Sin Chew Newspaper!
xes.cx – Keeping it Private

Minimising the risks in blogging

My article was featured in the Star today! w00t!

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.

Source: http://thestar.com.my/news/story.asp?file=/2009/1/8/focus/2945323&sec=focus