ISP's liablity- contract and fraud

When reviewing about ISPs’ liability, the main issue that we should not neglect is the promise of the ISPs and how they are able to keep the promise to provide good and better service for their subscribers. Subscribers will pay for the service provided so what is the consideration given on the part of the ISPs? An Internet Service Provider as discussed in past posts is a company which provides Internet access to its subscribers in exchange for a monthly fee. This has involved a deal of contract between the ISP and its particular subscriber. In contract, parties of it have to abide the obligation agreed upon signing the contact or the legal agreement. Thus, in this situation, we would like to stress that whenever an ISP signs an agreement to provide the Internet access service to its subscriber and receive the required fee, it is to be said that they have to ascertain that the subscriber is able to use their server to access the Internet in all reasonable means.

However, what if one of the subscribers cannot access to the Internet just like what have been promised on the time they made the deal? Is this considered as a breach of contract? What are the rights of the subscribers as they had already paid the fee? This week post will discuss about the contract and fraud liability on the ISPs and focused on a trademark case on this issue.

In the context of ISPs liability, if the above situation occurs, the ISPs are said to be liable to the breach of contract as well as fraud. An agreement made by the ISPs and their subscribers upon receiving the fees is to provide and facilitate their subscribers to have an access to the Internet. Thus, if any of their subscribers cannot be able to access to the Internet and the primary cause of that disability is due to the failure of the ISPs, they are persuaded to claim their right by taking a legal action towards the ISPs as they have breach the contract and committing fraud.

There is an American case (there are no Malaysian cases reported yet) reported regarding this issue on contract and fraud liability by ISPs. Taken from the BitLaw, the case is all about the famous America On Line (AOL) which is one of the biggest ISPs in USA. When AOL announced that it was shifting to a flat-rate billing policy, AOL's proprietary and Internet access services were overwhelmed. Customers who tried to dial in were often greeted by busy signals, and access to the Internet was very slow. Although AOL's performance improved, that did not stop frustrated customers from bringing lawsuits against the company. These suits alleged that AOL knew that their service would be overloaded, but nonetheless went ahead with the flat-rate plan. The suits alleged that AOL was in breach of its contracts with its customers (by not providing the agreed upon service) and had committed fraud by knowingly misleading current and prospective customers. At this point, AOL has not been found liable for its actions. However, the message for ISPs is clear. Deliver on all of the promises you make to your customers, and only promise what you can deliver.

Through the stated case on AOL, it is clearly shown that a contract deal is not to be breached and all the obligations within the contract must be fulfilled based on what has been agreed between the parties. For the purpose of liability on ISPs, we have to be aware that a promise to serve an Internet access is still a contract which needs to be done and any technical difficulties will not be an excuse when dealing with cyber problems.

For more information, visit this site.

trademark liability.

Besides copyright liability, ISPs also has to face liability over trademark infringement. According to BitLaw, if an ISP advertises their services under a trademark that is confusingly similar to a mark of another party (such as Netcomp, IBMLink, or CompuService), they would be exposed to charges of trademark infringement. In short, if the trademark used by the ISPs looks like the others’ trademark which tend to make users confuse, it is said that the ISPs have involved in trademark infringement.

According to eccouncilapac.org, Trademark liability typically involves a trademark owner suing a domain name registrant for a "bad faith" or wrongful domain name registration. The registration of an available domain name does not absolve it from potential trademark liability, if the owner of the same or a confusingly similar trade name can prove a "bad faith" registration.

The same as with the copyright infringement, an ISP is not directly liable towards any trademark infringement made by its users but however it could be liable for contributory trademark infringement. The element of knowledge is also vitally essential in putting the ISPs into this liability as if there is no knowledge in the part of the ISPs provider, the liability cannot be imposed towards them. Much like the contributory copyright infringement, contributory trademark infringement also can be established whereby the ISPs are considered to play the role of encouraging or facilitating the illegal activities.

However, there are still no reported cases on this trademark liability towards ISPs but referring to BitLaw, the Netcom decision should be referred and discussed in connection with the cases of copyright infringement.

by,
farahiyah, anis & fara.

broadband service providers in malaysia

broadband service providers in Malaysia

source: http://www.redesignmalaysia.com/isp

Broadband service	Type	comments
TMnet Streamyx	Wired	Currently has the most users.
Jaring Broadband Wired/Wireless	Wired/Wireless	Limited coverage areas.
Time Broadband	Various	Service satisfactory in limited areas that are covered. Many different packages available.
Airzed WiMax	Wireless	Currently rolling out in stages, website lists as coming soon.
DiGi Mobile Broadband	Wireless	Coverage is quite wide due to utilization of existing EDGE mobile network.
Nasion 1 Wireless Broadband	Wireless	Appears to be a boutique player for providing high-end corporate broadband services.
Maxis Wireless Broadband	Wirelesss	Somewhat limited coverage. See discussion at USJ.com.my Bandwidth capping, not P2P friendly.
Maxis 3G	3G	Maxis vs. Celcom 3G coverage commentary available at MyPDACafe.
Celcom 3G	3G	Widest 3G coverage so far. Maxis vs. Celcom 3G coverage commentary available at MyPdaCafe
Smart Ku-Band	Satellite	Uses satellite dish receiver similiar to Astro, but bigger. Expensive. Competes with Streamyx in Sabah/Sarawak and low population density areas in Malaysia.
Smart C-Band	Satellite	Uses satellite dish receiver similiar to Astro, but bigger. Expensive. Competes with Streamyx in Sabah/Sarawak and low population density areas in Malaysia.
EB Technologies MyWave24	Radio/Wireless	Billed by hour using prepaid cards - this is a hotspot service, not a residential one.
EB Technologies Residential / Commercial	Wireless/Wired	Package structure is confusing. From what I can tell, they offer both Wireless and Wired versions of their service.
PenangFon	Wired	Seems like a good service, but its Penang only.
AtlasOne	Wireless	Limited coverage area.
MyKris	Wireless	Official website is quite useless, hard to use and doesn’t have information about the service. Price was gotten from an e-mail from a customer service rep. More information at this forum discussion. Service quality debatable - comments are either saying its very good or very bad.
ZapZone	Wireless	Extremely limited coverage - Only 20 locations throughout Malaysia.
GoLightSpeed	Wireless	Available in limited areas. Seems to be in pre-registration mode.
IM Wirefree Broadband	Wireless	Coverage available in Klang Valley. PC Card costs RM1000.

ISP's Criminal Liablity

Besides facing civil liability such as copyright infringement and defamation, an ISP is also liable for criminal liability. There are two kinds of liability listed under the criminal law which are;

-Possession of Obscene Materials

-Contempt of the Court

POSSESSION OF OBSCENE MATERIALS

In each state, the law which governs the provision concerning possession of obscene materials are different. For the purpose of discussing this issue, we will look through the law used in certain states.

Malaysia

the Printing and Publication Act 1984 (Act 301)

Undesirable publications

Section 7 (1) If the Minister is satisfied that any publication contains any article, caricature, photograph, report, notes, writing, sound, music, statement or any other thing which is in any manner prejudicial to or likely to be prejudicial to public order, morality, security, or which is likely to alarm public opinion, or which is or is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to public interest or national interest, he may in his absolute discretion by order published in the Gazette prohibit, either absolutely or subject to such conditions as may be prescribed, the printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of that publication and future publications of the publisher concerned.

the Multimedia and Communication Act 1998

Prohibition on provision of offensive content

Section 211

(1) No content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.

(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day or part of a day during which the offence is continued after conviction.

The transmission by ISPs:

There are 3 ways to impose this liability on ISPs;

-Impose liability on the ISP which has the knowledge on the dissemination of the obscene materials. This will allow the defense of no knowledge.

-Impose on the ISPs which disseminate the obscene materials for profitable purpose.

-Impose on the ISPs which disseminate obscene materials with knowledge but with exemption to the ISPs which operates by giving access to other servers without actively involved in the distributing of the obscene materials.

United Kingdom

the Obscene Publication Act 1951

An Act to amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography.

1.Test of obscenity

(1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

Source: ics.leeds

CONTEMPT OF THE COURT

Another criminal liability that can be imposed on ISPs is concerning the materials which related to the contempt of the court. It may amount to Contempt of Court if the publication of materials is:-

Prejudicial to a fair criminal trial

Prejudicial to a fair civil proceeding

Interfering with the course of justice as a continuing process

Contempt in the face of court

Acts which interferes with the course of justice

Law:

Malaysia: Criminal Procedure Code (CPC)

United Kingdom: Contempt of the Court 1981