Living Creatively

Since the first free ‘build-your-own weblog’ tool was developed in 1999, the popularity of blogs has soared. Evolving from the online journal, where the average Joe (or Jane) kept a running account of their personal life, blogs have now become a tool for corporations, the media and even political candidates who seek to reach out to their audience. Similarly, the popularity of forums (online discussion groups where users read and post topics and communicate with other forum users) has also skyrocketed.

By giving people the ability to publish just about anything to a world-wide audience, blogs and forums can be fraught with risks - both for the author and the website owner as the owner of the website may be liable as the publisher of the information even if the information was posted by a third party. ISPs are not typically liable unless they have actual knowledge of the illegal activity/information. In August 2007, a Liberal candidate learnt the hard way the risks associated with blogging after he was forced to stand down after using offensive language to describe Victorian Transport Minister Lynne Kosky on his blog. In this case, it was the choice of the candidate (or arguably his party) for him to stand down, rather than a result of legal action, but it is an example of how saying “the wrong thing” on a blog can have huge ramifications on one’s personal and professional life. In fact, losing one’s job because of what you’ve posted on a website has become so commonplace that there is now an informal verb for the event: “dooced”1.

The main legal liability issues surrounding blogs and forums in Australia are defamation, breach of confidential information and copyright and trade mark infringement. People also need to keep in mind that even though they are writing their blog or forum post in Australia, it will be accessed by people in numerous legal jurisdictions. This could potentially open them up to overseas actions. For example, in Australia, for the purpose of defamation law, publication of material on the Internet occurs in the place where the material is downloaded and comprehended by the Internet user2. This is important to remember if blogging about a person overseas or about another country’s politics.

DEFAMATION

• In the last few years there have been numerous “blog” defamation cases heard overseas, with the first case in Malaysia being brought early this year. In this case, one of the country’s pro-government newspapers, the New Straits Times Press, sued 2 popular Internet bloggers for alleged defamation by each of them in their individual blogs. This defamation lawsuit has supposedly had a chilling effect on those who blog about Malaysia and has even resulted in a Malaysian Parliamentary minister calling for bloggers using locally hosted websites to be registered with the authorities3. The case, which commenced in January 2007, is still continuing through the courts. This investment of time (and no doubt money) in defending the action is an example of the costs of alleged defamation.

POLITICAL SENSITIVITY

• The above case is also an example of the dangers of blogging about politically sensitive areas. Further examples include the arrest in late 2004 of a then 25 year old blogger in Iran after he blogged about the arrests of 3 other bloggers (according to the official charges, he was suspected of having insulted the head of state of Iran, of endangering national security and of having insulted the prophets). He served 21 months in prison, during which time he was allegedly held in solitary confinement for 88 days and subject to beatings and torture. In Egypt in February, a 22 year old Egyptian blogger was imprisoned for 4 years for insulting Islam and inciting sedition (by criticising the country's top Islamic institution, al-Azhar University) and insulting President Hosni Mubarak (whom he called a dictator).

COPYRIGHT INFRINGEMENT

• Copyright infringement may arise if a person uploads material created by a third party to a website without the creator’s permission. This could include portions of articles or images. Anyone wanting to post material created by someone else needs to obtain a licence to use that material from the creator. Website owners who allow people to upload materials to their website need to make this condition clear in the website terms and conditions. Caution also needs to be taken to ensure a creator’s moral rights are not infringed. This includes ensuring that the creator of the work is always attributed correctly and their work is not changed or treated in a derogatory way.

TRADE MARK INFRINGEMENT

• Trade mark infringement is likely to be a problem if the person posting the trade mark on the website is trying to sell competing goods or is pretending to be the company or be associated with the company (including speaking on behalf of the company) or is implying that the company is associated with the website (when they are not).

As a blogger, perhaps one way to avoid liability is to only post comments about other people that you’d be happy to see about yourself. Also, remember not to post any third party material (text or images) without the clear permission of the creator. It is also advisable not to put “blogger” as your occupation if you want to enter the U.S.A. (at least that was the case in 2005 when Canadian Jeremy Wright did just that and was denied entry, strip searched and flagged for follow-up every time he enters the U.S.A., apparently because the immigration staff did not believe that someone could be earning a living by blogging4).

As a website owner who allows people to comment on their blog or who has a forum on their site, you need to diligently monitor all comments and have the ability to remove postings immediately without permission. You should also require that anyone who wants to post comments registers (so you have their details) and agrees to the website terms and conditions. These terms and conditions should set out what material may (and may not) be posted and should state, among other things, that the user gives you a licence to reproduce and deal with any material they post and that the user indemnifies you for any losses you suffer by reason of that user breaching the terms and conditions (for example, if they post material which you have stated is not allowed).

At this time, the law surrounding blogs is still in its infancy and differs from country to country. However, as the number of “blog-related” arrests and cases before the courts grow, the potential of blogs and forums to be the next battlefield for litigation is being realised.

By Amanda Wilson

If you need further information about the legal implications of blogs or forums or would like assistance with drafting your website terms and conditions, please do not hesitate to contact EKM Legal on 03 9829 0999.

1 http://www.urbandictionary.com/define.php?term=dooced

2 Dow Jones & Company Inc. v Gutnick [2002] HCA 56 (10 December 2002).

3 This same idea was implemented in China in 2005 whereby everyone had to register or else face criminal sanctions – this has since been toned down and now blog service providers are merely “encouraged” to register users under their real names and contact information before letting them post blogs.

4 http://www.ensight.org/archives/2005/03/17/the-end-of-the-story/