Legal issues of Blogging

Advocate Babu Ram AryalPresident, Internet Society Nepal ChapterChairman, Center for Law and Technology

To began with:

“Where there is water, there is life. And where there is the Internet, there is hope. Let’s make sure everybody has plenty of both.”

Gunilla Carlsson, Minister for International Development Cooperation, Sweden

“When a government is depriving its citizens’ access to the Internet the whole world is affected in that nobody gets access to those citizens’ stories and perspectives.”

Mr. Guy Berger, Director for FOE and Media Development, UNESCO

“Blocking social networking also means blocking prosperity on these markets.”

Mr Suneet Singh Tuli, President & CEO DataWind Ltd

Internet : An important tools for Freedom of Expression

International Instruments• "Everyone has the right to freedom of opinion and expression;

this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." Article 19, UDHR

• "This right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." Article 19, ICCPR

• “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Article 10[1] of the European Convention for the Protection of Human Rights and Fundamental Freedoms

Blogging v. Journalism

•Bloggers are also protected under FOE as traditional Journalists enjoy.

•California state appeals court ruled "the online journalists have the same right to protect the confidentiality of their sources as offline reporters do" Apple v. Doea

National Protection on Internet and FOE

The Interim Constitution, 2007

•12 (3) every citizen shall have the following freedoms:

•(a) freedom of opinion and expression;

The Interim Constitution, 2007…•15. Right Regarding Publication,

Broadcasting and Press:

(1) No publication and broadcasting or printing of any news items, editorial, article, writings or other readings, audio-visual materials, by any means including electronic publication, broadcasting and press, shall be censored.

Constitutional Guarantee in Nepal….

(2) No radio, television, online or any other types of digital or electronic means, press or any other communication media shall be closed, seized or be cancelled the registration because of publishing and broadcasting or printing any material by such means of audio, audio-visual or electronic equipments.

(3) No newspaper, periodical or press shall be closed, seized or be cancelled the registration for printing and publishing any news items, articles, editorial, writings or other reading materials.

(4) No communication means including press, electronic broadcasting and telephone shall be obstructed except in accordance with law.

Constitutional Restriction• Nothing shall be deemed to prevent the making of

laws to impose reasonable restrictions on any act which may undermine the sovereignty or integrity of Nepal, or which may jeopardize the harmonious relations subsisting among the peoples of various castes, tribes or communities; or on any act of sedition, defamation, contempt of court or incitement to an offence; or on any act which may be contrary to decent public behavior or morality.▫Proviso of Article 15(1) of the Interim Constitution

Permissible Restriction under the law: UN Special Rapporteur's Report•Child pornography•Direct and public incitement to commit

genocide•Advocacy of national, racial or religious

hatred that constitutes incitement to discrimination, hostility or violence

•Incitement of Terrorism

Some FOE related National Laws

National Security

•Proviso of Article 15(1)•License Agreement between NTA and ISPs

▫Following contents are prohibited to upload, distribute, transmit, sale and use under the licence agreement between Nepal Telecommunication Authority (NTA) and ISPs: Any content that undermine sovereignty

integrity and national interest of Nepal and that amounts to treason

Defamation

•Defamation is the act of injuring a person’s reputation by making a false statement.

•Sec. 47 of Electronic Transaction Act, 2006 prohibits publication of any content that is declared illegal or prohibited by any other law.

•The Defamation Act, 2015 prohibits any act that injures a person's reputation, publically.

Privacy• Article 28 of the Interim Constitution ensures Right to Privacy as

follows:

"Except in the circumstances provided by law, privacy in relation to the person, and to their residence, property, documents, records, statistics and correspondence and their reputation are inviolable. "

"In Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010), New York Supreme Court held that " ..when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. "

• If a person does not want to share any information on blog and another person make public the same , amounts to breach of privacy law.

In this aspect, tagging of another person's photograph or posting non users personal information does not be protected by the nature of the SNS's.

Copyrights• Service Provider is not liable in a case where a

member [user] uses or uploads the copyright infringed content

• “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” ▫ US Code 47 USC §230(c)(1).

• In such case the liability goes to the user itself. • When any copyright owner complaints the case and

informs the site owner to remove such infringed content and still the Service Provider do not remove from the site, the owner is also held liable on such cases.

• The Copyright Act, 2002 of Nepal protects the creation as intellectual property.

Obscene/Pornography/Indecent• Sec. 47 of ETA, 2006 prohibits publication or display

of any material in the electronic media including computer, internet which are prohibited to publish or display by the prevailing law or which may be contrary to the public morality or decent behavior or any types of materials which may spread hate or jealousy against anyone or which may jeopardize the harmonious relations subsisting among the peoples of various castes, tribes and communities.

• Sec. 2 of the Some Public (Crime and Punishment) Act, 1970 prohibits to print or publish any obscene materials by using obscene language or by any word or picture which denotes obscene meaning; or to exhibit or sell or distribute such obscene publication in public place other than the purpose of public health or health science.

Obscene/Pornography/Indecent• Under the License Agreement between Nepal Telecommunication

Authority (NTA) and ISPs [After 26th September, 2010] NTA or Nepal Government can ask ISPs to block certain websites.

• This applies to the Blogs as well. • Following contents are prohibited to upload, distribute, transmit,

sale and use under the licence agreement between Nepal Telecommunication Authority (NTA) and ISPs:▫ Any content that undermine sovereignty integrity and national interest of

Nepal and that amounts to treason▫ Any obscene content that be termed as obscene by prevailing law of the

land,▫ Any act which may be contrary to decent public behaviour or morality, or ▫ Which may jeopardize the harmonious relations subsisting among the

peoples of various castes, tribes, religion or communities, or any act that provoke such social harmony, any visual, photograph, write up that projects/depicts highly violent act or any content that obstruct national and personal security.

• ISP's shall make arrangement of denial of access on child pornography and such websites under the same agremment.

Severity of liabilityTraditional v. Internet

• The Internet is an information and communication tool particularly distinct from the printed media, in particular as regards the capacity to store and transmit information. The electronic network serving billions of users worldwide is not and potentially can not be subject to the same regulations and control. The risk of harm posed by content and communications on the internet to the exercise and enjoyment of human rights and freedoms, .. is certainly higher than that posed by press.

▫ Editorial Board of Pravoye and Shetkel v. Ukrine[05.05.2011], Europian Court of Human Rights

Some Legal FAQ for Bloggers • What legal liability issues can arise from my

blog?• What should I do if I get sued for what I blogged?• What if I get sued for something written by

another person that I posted on my blog?• Do I have a right to blog anonymously?• Can ISP take down my protected speech? Did it

violate my constitutional rights?• Do the commenter's on my blog have a right to

say whatever they want in the comments?• Is disemvowelled of moderator on the comments

illegal?

Some Legal FAQ for Bloggers ….• I found something interesting on someone else's blog.

May I quote it?• Am I free to copy facts and ideas?• If a reader comments on my blog, does she license the

rights to me?• Can I "deep link" to someone else's website or blog

post?• When can I borrow someone's images for my blog

post?• Can I sue if my site is wrongly taken down?• I want to complain about a company. Can I use their

name and logo?• Can I use a trademark in my blog's name or in the title

of a blog post?

Some Legal FAQ for Bloggers ….• What is defamation?• What are the elements of a defamation claim?• Is truth a defense to defamation claims?• What if I change the person's name?• Do blogs have the same constitutional

protections as mainstream media?• What if I republish another person's

statement? (i.e. someone comments on your posts)

• Can my commenters sue me for editing or deleting their comments on my blog?

• Can I be sued for publishing somebody else's private facts?

Some Legal FAQ for Bloggers ….• If I am fired for blogging while at work, do I have

any legal recourse?• What if I am fired for something I wrote in my

blog when I wasn't at work?• Can my employer monitor my blog if I use work

computers or the company network?• Is it legal for my boss to monitor my blogging at

work if I'm on a break?• If my co-workers and I start a blog about our

workplace, are there any laws that protect us from being fired for what we say on it?

• What should I do if I was terminated in retaliation for protected activity?

Some Legal FAQ for Bloggers ….• Can I be fired for whistle-blogging about my

company's violation of the law?• Should I report the violation before whistle-

blogging about it?• What can I do to protect myself from employer

retaliation?• Can I put adult content on my blog?• What is obscene material?• How do you determine "community standards"

on the Internet?• What is child pornography?• What is sexually explicit conduct?

Legal Procedure: To be followed

•State Case •FIR at police station•Jurisdiction of Kathmandu District Court

only

•Center for Law and Technology Pvt. Ltd. has expertise on Investigation and defense.

? ? ?

Thank you !

Contact:

Advocate Babu Ram AryalChairman, Center for Law and Technology Pvt. Ltd.

President, Internet Society Nepal Chapter

Email: baburam@cltnepal.com, baburam.aryal@gmail.com Website: www.cltnepal.com and www.isoc.net.np Twitter: cyberlawnepalFacebook:www.facebook.com/Babu Ram AryalSkype: baburam.aryalPhone: 9851048401