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eLawyer Conference - Be informed!

Last Saturday I attended the ”eLawyer Law Conference 2009 - Blogging & Law”. It was interesting, I got to meet up with some bloggers and also (of course) tell people about the survey – myBlogS 2009 (there are 151 responses so far – have you had your say?).

When I arrived I first spotted Suanie, then also Foong Cheng Leong and Nizam Bashir. I always have difficulties remembering Cheng Leong’s name, because I really knew him first (before I met him) as ‘xes’ - which is his blog that has been around a long time. I had met them before at the Bar Council Blogging and Defamation Forum, so I was familiar with quite a lot of what they said, but it struck me again that spreading this information around is really important for bloggers. I find that there are still too many bloggers who seem to think that just because you’re online, suddenly there are no laws and you can start to act (figuratively) like Marv from Sin City.

I also met kruel74 for the first time, and DiEsE - I forgot to take photos with them though (tsk tsk – lose two points for not being a proper blogger :-P). kuE and CurryEgg were also there, and have done a pretty good job summarising what was said in the two talks; I have also talked about some of the issues before (link above), but here are the ones which stuck in my mind:

First of all, Eddie Law opened the conference and explained what is all about; mostly it’s for lawyers and law students (job announcements, online resources, etc.), but there are also some useful services for ordinary Joes and Janes like you and me.

Legal Q&A: you can submit legal questions and get a professional opinion.
Find a lawyer: you can search for a lawyer near you, and with a particular specialism
S & P Legal Fee Calculator: this will calculate legal fees for Stamp Duty and Sales & Purchase agreements.

Then we had the main talks.

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Blogging and Defamation - Part II

I've been meaning to do this for more than a week now, but have been pretty busy (some previous thoughts here).

The KL Bar Council's Information Technology Committee has planned a series of forums on IT related issues, and this was the first one on "Blogging and Defamation". It started on time (unusually) and the panellists were three long-standing bloggers - Nizam Bashir, Foong Cheng Loong and Jeff Ooi.

The Chair of the Committee stareted by explaining that defamation was
'a statement calculated to injure another person or reduce willingness of others to associate with said person'
There is also civil and criminal defamation - which may be based on the same definition, but the criminal one can land you in jail for two years. He pointed out that there is NO special protection for bloggers, and even criticising someone's char kuey teow in Jalan Alor can be considered defamatory. By the way - 'slander' is oral, and 'defamation' is written - I think they have the same potential liabilities though.

Nizam Bashir (sorry no photo) gave a detailed presentation on the legal history and other facts about defamation and blogging. He pointed out the constitutional 'right to freedom of speech and expression', but there are provisos that limit this right in relation to security, contempt of court, 'morality' [not sure what this was exactly], defamation, incitement of an offence; and also relating to (Bumiputra, I suppose) privileges, religion, and the rulers.

Defences that can be used are:
• Truth: (if it's the truth it's not defamation, I suppose)
• 'Legal, social or moral duty' to say something to a particular person (e.g. a teacher telling a parent their child is no good at school). As relates to blogs, you could have a password protected post for particular person
• Expressing an opinion: the facts must be reasonably accurate and in the public interest - based on the concept of "fair comment"

He said that the key issue was where to place the boundaries to free speech. He said that Malaysians should be able to speak about some of the topics placed 'off-limits' - "we are made of sterner stuff". He also said that one of the consequences of the recent legal actions initiated against bloggers was a chilling effect on the freedom of speech; more people may want to stay anonymous - which affects the credibility of blogs; and overall more problems than solutions is the general result.

bar council malaysia blogs law Foong Cheng Leong
Continue reading "Blogging and Defamation - Part II"

Blogging and defamation laws

There's a Forum organised by the KL Bar this Thursday on Blogging and Defamation laws . I'll be checking it out, and it's probably a good idea for any blogger who has a reasonable audience and likes to talk about other people.

The thing that has always struck me about blogging and defamation is the idea that just because you do something in 'cyberspace' it will be subject to different laws (or not subject to the usual laws). My basic opinion is that if you say something about someone, wherever you say it, you should be accountable for it.

I do think there are limits on the freedom of expression - basically inciting violence is my limit: so I can say that all people from Boogerland are congenital idiots, but I can't say that they should be burnt out of their houses because of it. On other issues relating to comment in the public sphere one should be able to pass comment on others, but be prepared to defend what one says if called upon. If I was to say that Joe Bloggs is cheating his customers, and then because of that his business is affected, then he should be able to sue me - it doesn't matter if I said it online or not, what matters is that his reputation and/or business is negatively affected. Of course, if he really does cheat his customers and I can prove it, then he loses the case and pays the costs.

So the bottom line for me is that on- or offline, there is no fundamental difference. But it's surprising how many people think there is - it's because of the whole 'cyberspace', 'virtual reality', thing - that what happens online is not 'In Real Life'. This was the point made in relation to some high school students in Singapore who had blogged about their teacher(s) in 2005.

The first time I remember a legal issue with blogs coming to the fore was around October 2004, when a commenter in Jeff Ooi's blog made some remarks deemed offensive to Islam (the post is no longer online, but the episode is recounted by Oon Yeoh). The issue that arose here was the responsibility of the blogger for the comments - Jeff Ooi supplied the IP address to the police (a move criticised by some) and later stated that "If someone posts something offensive, it is up to the owner of the blog to delete it.- (September 2005).

Around the same time Mack Zulkifli, author of the blog 'Brand New Malaysian' (no longer online since July 2006), was also forced to deal with the racially provocative comments left by a person calling him/herself 'goodman'. He was also accused of promoting censorship because he reported the comments to the police. One point he made was that leaving comments was different to someone just letting off steam in a public place - "[The comment] stays there, available as a form of public record and in the case of the internet, tracked, indexed and stored in public domain by search engines, such as Google, Yahoo etc.- (Zulkifli). Since that 'goodman' incident there was been an increase in the number of bloggers who required that you register with them first, or that they vet all comments.

This is one key difference between the old and new media; new media usually involve an element of interaction, so individual responsibility may be blurred. As a parallel - would I be responsible for someone who spray painted a racist comment on the outside wall of my garden?

This does relate to an important difference between on- and offline social interaction. Usually, online interchanges remain visible a lot longer than offline ones: so if I get in a drunken argument with Jane one evening in the bar, and accuse her of having loose morals with a football team, then probably it will just be a blurry memory for everyone the next day, and she will never speak to me again. But if I do it online, and put it in her comments or somewhere, it may be online for a long time, and then one day her fiancé sees it and freaks out and dumps her...

As a society we are going to have to learn to deal with these issues. For example: will everything being cached by Google now still be online in twenty years? Who will own that information? Will we have the right to delete old stuff we don't want anymore (e.g. comments we have left on another person's profile in Facebook)?

It strikes me that that two of the posts I mention above are no longer online, probably because the bloggers owned their own site and therefore had complete control over the contents. Most people, however, use free services that often claim some form of ownership or exploitation rights to whatever is produced via their services. So, one solution is for everyone to own their own sites.

**Update same day**
I just noticed this person saying Yahoo! has deleted all profiles with no warning. I don't know the details but I'll bet it's annoying. The problem is, because it's free you have no control - really, we have to look forward to the day when your 'base of online action' (your profile, blog, avatar, email, etc.) is your own, and operates on open standards.

**Update 2 Nov. 2008**
Here are links to all the posts I could find announcing the Forum - most are simple announcements with little discussion:
• Screenshots...: 'Blogging & Defamation Laws'... Oct 23, Bar Council
• The Middle Ground: Freedom of speech, blogging and defamation
• Forum on Blogging & Defamation Laws
• DragonKenLai: Forum on Blogging and Defamation
• all the world's a stage: Forum on Blogging & Defamation
• u-jean: Website, events, events, events
• The Independent Spirit: Forum on Blogging & Defamation Laws
• dyvallion: Forum on Blogging & Defamation Law
• Malacca Bar: Forum on Blogging & Defamation Laws
• thestar Citizen's Blog: Forum on Blogging and Defamation Laws
• Malaysian Bar Forum: Forum on Blogging & Defamation Laws

Fencing the internet

It’s fortunate that this year the ICAS conference is being held in KL, and I have the time to attend, seeing as not much else is happening to me right now. I always enjoy going to such conferences, and getting the chance to see experts impart their detailed knowledge.

There are an extraordinary amount of panels going on: 23 rooms with normally four sessions each per day – 92 in all! Which may explain why some of them had very poor attendance. Or maybe it was just the ones I attended? Whatever, although there is not much about the internet, I was lucky enough to catch a couple of interesting ones.

One by Terry Johal, a Singaporean who talked about the role of the legislative and the judiciary in the Singaporean reaction to blogs, and online media in general. He noted how the MSM has an increased coverage of blogs since 2005; commented on the various scandals (SPG’s nude photos, “sensitive army photos” being published; the ‘handicapped toilet’ debacle that led to Malaysian bloggers being drawn in too; and some others). Actually he said an awful lot of stuff, and I can’t put it all here, but the gist of it was that the Singaporean government relies heavily on “common law” and precedence as a way of inferring that what is not specifically allowed is prohibited, and also uses “drift net legislation”, such as the Maintenance of Religious Harmony Act (1990) that makes it illegal to “cause ill-feelings between religious groups” – this is quite imprecise, and therefore can be used to cover many types of situations. He also pointed out that although the Internet Code of Practice could have been used in certain situations with bloggers, instead defamation laws or the above-mentioned Religious Harmony Act were used – because this would have less impact in an international sense.

In relation to the last point, he described how when there was some issue with Mr. Brown (I think), the fact that the MSM took it on, and the government weighed in, what was a “non-event in internet time” (i.e. it would have died out in a couple of days) became a big issue in the local and then international media – attracting unwanted negative publicity for Singapore.

Also, finally, he mentioned an Australian court case where it was decided that the place of publishing is where it is downloaded (discussion here). To take a topical case:

“For all intents and purposes, Malaysia Today is a foreign website and not a Malaysian website. We therefore do not come under Malaysian laws.” (Raja Petra Kamarudin)

According to the principle set in Australia (which doesn’t have to apply here, that’s up to the Malaysian court) even if RPK’s server is not in Malaysia, the fact that people read his blog here in Malaysia means that a Malaysian court can rule on it.

Another very interesting talk was by a Korean, Yeon Ok-Lee, entitled “The Internet Real-Name System and Privacy Trade-Off in Korea” – but I don’t have time to blog about that now. Will do in future. Google the title and you'll see what it is about.