By Staff writer
As blogging starts to take off more and more in the Middle East, Mark Hill of The Rights Lawyers takes a look at some of the legal risks of defamation and abusing intellectual property rights.
Blogging is beginning to take off in the Middle East.
Hundreds of online users in the region are getting involved every week and recent figures from Arabic portals such as Al Bawaba and Maktoob show that blog traffic is increasing rapidly across the region.
As you probably know, the blog (short for Web log) is a journal or diary posted on the internet.
Having a personal blog I guess is kind of like publishing your own newspaper continuously and updating it regularly.
Bloggers may provide links to other blogs or can reproduce part or all of other blogs on their own blog.
Blogs also seem to sit across the divide between standard publishing and online broadcasting and publishing options.
Blogs obviously can serve any purpose an individual can think of whether it be political commentary (seemingly most popular in the Middle East), literature, industry commentary or anything else.
Like all journalists and publishers, bloggers sometimes publish information that other people would rather not see published.
You might, for example, publish something that someone considers defamatory or republish a news story that is under copyright and where rights are owned by somebody else.
The difference between the blogger and the reporter in a newspaper or broadcaster context is that, in many cases, the blogger does not have the benefit of training or resources to help them determine whether what they are doing is legal.
And on top of that, sometimes knowing the law doesn’t particularly help — blogging is still such a new phenomenon that the courts in many parts of the world haven’t decided how the traditional law should apply to bloggers.
Probably some of the main potential risk areas from a legal liability point of view include:
Generally, defamation is the making of a false and unprivileged statement of fact that is harmful to someone’s reputation.
There are various elements that need to be proved to establish that a defamation has occurred.
Here are some of the common ones:
* There has been a publication to one other than the person defamed.
* The statement of fact is false i.e. truth is a defence to defamation.
* That false statement must be understood to be about the person defamed.
* It must also be understood to have a tendency to harm the reputation of that
person. Part of the problem that we have in the Middle East is that we have some fairly broad ranging defamation laws.
We have seen various cases over recent times with journalists having been imprisoned for stories they have written.
This obviously runs pretty broadly against any concept of freedom of the press but if you apply it in a blogging context the problems, if anything, get even worse.
One of the problems is that in the Middle East (for example in the UAE), the primary tool of the person claiming they have been defamed is to go to the police rather than to court (as would be the case in other countries around the world).
It costs nothing to make a police complaint and you run the risk of eventually facing imprisonment and fines if you find yourself on the wrong side of the defamation line.
This is a key risk for anyone running a blog in this part of the world.
So, regardless of whether there is any merit in the claim that a defamation has occurred, it is so easy to launch a criminal action for defamation that the risk will always exist for bloggers.
Here are a few examples:
* We advised on a defamation being raised against one of the UAE’s daily newspapers relating to an entirely truthful story.
There was absolutely no defamation involved whatsoever but the story did refer to a particularly grizzly occurrence taking place in a named building somewhere in Dubai.
The owners of that building took exception to the fact that this had been made public and decided to make a police complaint and put in a claim for US $2.8 million in damages!
We got the claim thrown out but not before our client editor had been summoned down to the police station and an investigation had ensued.
* Another client running a blog on their online portal was summoned to the police station to answer queries relating to an article that appeared in a blog hosted on their portal which talked about the Arabic lesbian scene in Europe.
Our client had no involvement or control over the story and yet was called down to answer in relation to its contents.
* We have seen many instances where bloggers have used the blog forum to unfairly and, in many cases, untruthfully criticize a competitor.
You can normally figure out when this involves people attacking their competitors because they rarely will disclose who they are.
In this instance, our client chose to deal with the inaccuracies raised by running a reply on its own blog site.
The basic rule is that when copyrights or trade mark rights exist, you should not use them without permission.
In the blogging world, there are some exceptions though.
Here are some examples.
* If you find something interesting on someone else’s blog, can you quote it?
The answer may be yes depending on whether you can argue that you are making a “fair use” for purposes such as criticism, comment, news reporting, teaching, research, etc.
The laws are quite broad though, so again it is worthwhile having a good idea of what the laws relating to fair use are at least in the country you are operating in.
Bluntly, there are no hard and fast rules for fair use so it is a matter of figuring it out on a case by case basis or figuring out what your standard policy is going to be.
Obviously, the more you borrow someone else’s content, images, text, etc., the higher the risk that you may be infringing.
* We are often asked whether a blog can parody someone by using their images and text in the parody.
Parody is recognised as a type of fair use in some countries (but again this is an issue of becoming familiar with the laws of the country you are operating in as a blogger) and it is generally recognised that a parody must often take recognisable elements from the work it comments upon.
Remember though that even here, parody is different to satire.
Satire uses recognisable elements from another work where copyright is owned by a third party to mock something else or society in general.
This will be kind of like criticising American foreign policy using Dilbert illustrations.
Satire is far less likely to get away with a fair use claim than say parody.
* What about deeplinking into someone else’s web site or blog post?
It is fair to say that most people are probably happy enough to have other web sites linked to them.
So far, courts around the world generally do not find that deeplinks to web pages are copyright infringement or trespass but the law is ever changing and is still developing in the Middle East.
Trade mark law prevents you from using someone else’s trade mark to sell your competing products or services i.e. you can’t make and sell your own H. Stern jewellery or name your blog “Newsweek” (if those trade marks are covered in your jurisdiction) but that doesn’t stop you from using the trade mark to refer to the trade mark owner or its products or services e.g. offering repair services for H. Stern jewellery or criticising Newsweek’s editorial.
The right of publicity relates to the claim that you have used someone’s name or likeness to your commercial advantage without consent and resulting in injury.
This is a whole new developing part of the law here so it is an issue of watch this space, particularly as we see the cult of the celebrity begin to increase considerably in the Middle Eastern context with an increase in the number of high profile singers and sports personalities in the region.
A new phrase has entered into the online world and this will eventually find its way into the dictionary.
This word is “dooced”, which basically means being fired because of the harmful content and public availability of a blog.
This raises the issue of whether there is any relevance of blogging to employers.
Probably the easiest way to deal with this as the phenomenon develops is for employers to take on the responsibility of figuring out whether they should have a blogging policy.
• The blogger should be instructed to state that the opinions expressed in the blog about any work-related matters are their own and are not the views of the employer;
• Bloggers should be required to comply with the company’s policies regarding its trade secrets and confidential information;
• The policy should explain when, if at all, the employee blogger can use the company’s trade marks; and
• Obviously the blog should not be a vehicle for personal attacks in the workplace.
All in all, blogging pretty much seems as though it is here to stay but it is worth bearing in mind that, apart from whether the powers that be decide to block internet access to a particular site (as happened last year when access to the Secret Dubai blog was temporary blocked), there are also potentially serious legal risks for the blogger and, in some cases, for the blogger’s employer.