To date, issues on copyright infringement in Malaysia is governed by the Copyright Act 1987, Australia on the other hand is governed by the Australia’s Broadcasting Services Amendment (On-Line Service) Act 1999. The Act was forced in the summer of 1999 by the Australian parliament but it only takes effect on 1st January 2000. The Act enjoins the Australian Broadcasting Authority (ABA) as the government body which will scrutiny the particular contents which are going to be posted online. Under the ABA, there is a Classification Board which will do the task of filtering and classifying the Internet contents besides react to the complaints regarding the infringement.
According to the Act, ABA will take action on the ISPs by providing a take-down notice if they are detecting any prohibited content on the Internet hosted by the ISPs in Australia. The ISPs ought to comply with the notice within workdays and if they failed to take any reasonable actions and measures to assure that the prohibited contents are not reappearing on their server, they are liable to be fined up to A$ 27,500 per day which is a heavy sanctions!
The Act also provides the situation whereby if the prohibited contents are uploaded on the Internet but they are hosted outside of Australia, the ISPs in Australia which offered the access to the contents will be given a notice demanding to take all reasonable means to block access to the contents or to block the contents according to the relevant rules of a (business) code. After complying with the notices sent to them, the ISPs will have to follow the information duties and procedures which are laid down in the codes of practice otherwise they will face the sanctions.
Liability for a defamatory statement may also be extended to an ISP under the principles of vicarious liability or because, in providing online access facilities, the ISP is directly liable as a publisher or disseminator of the offending statement.The fundamental basis of defamation liability is the publication of untrue information. The liability to be imposed is based on the damage to the reputation of the person referred to in the information that is then disseminated to others. The case of Godfrey v Demonis the first UK case to find a responsibility on the part of an ISP in regards to defamation. In this case, the defendant, an ISP was sued for a defamatory statement carried in a newsgroup hosted on its server. The court held that because Demon chose to receive and store the newsgroup, and had the power to delete the messages from it; it was therefore considered as a publisher and is subjected to any specific defences under the Defamation Act 1996. However, in the case of Cubby Inc v Compuserve Inc, it was held that an ISP’s chosen mode of activity in passing on information from third parties unmodified and unexamined rendered it more like a distributor than a publisher and thus not liable for allegedly defamatory statements made by a subscriber in posting to news group.
The difficulty in establishing an ISP's liability for defamation is that national defamation laws differ so widely.
According to Chris Reed and John Angel (2000, Computer Law, 4th Edition, London, Blackstone Press Limited), "… it is possible to state with certainty that in most, if not all, jurisdictions, the fundamental basis of defamation liability is the publication of untrue information, that liability will be based on the extent of the damage to the reputation of the person referred to in that information, and that the person's reputation of the person referred to in that information, and that a person's reputation cannot be damaged unless the information is disseminated to people other than the author." In a simple word defamation occurs when a person expresses words that may lower another person’s reputation in the eyes of the public.
The laws governing defamation in Malaysia are including in civil and criminal cases. In civil cases of defamation, when a private person sues another private person for defamation, the Defamation Act 1957 is applicable. Whereas in criminal cases of defamation, when the state prosecutes a private person for defamation, Section 499 to Section 502 of the Penal Code is applicable.
In Singapore, with respect to the role of ISPs. section 10 of the Electronic Transaction Act protects an ISP from liability from making, publication, dissemination or distribution of third party materials, if the ISP were merely providing access to such materilas. A third party refers, in this context, to a person over which the ISP has no efective control.
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.
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.
Uses satellite dish receiver similiar to Astro, but bigger. Expensive. Competes with Streamyx in Sabah/Sarawak and low population density areas in Malaysia.
Uses satellite dish receiver similiar to Astro, but bigger. Expensive. Competes with Streamyx in Sabah/Sarawak and low population density areas in Malaysia.
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.
