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defamation

Internet Defamation – Comparison Between British and Omani Law

(Photo credits: Assbach)

Defamation and insults are some of the most controversial issues on the Internet. Most people think that they have an absolute right of freedom of speech to say whatever they want, but the reality is that your freedom of speech is subject to several restrictions, one of which is the right of others not to be defamed or insulted without any justification.

The anonymous nature of the Internet makes it tempting to think that defamation rules do not apply to online speech because of the difficulty to enforcing the law, but as we have seen, that is not the case, and even in Oman, people were prosecuted, fined, and even jailed for defamation related offences.

If you run a blog, a forum, or a website, or if you post comments anywhere on the Internet you have to be aware of the possible consequences of what you write. I will try to explain the differences between the defamation law in the UK and Oman and the difference in liability limits of website owners in both countries.

First of all, defamation in the UK is a civil action while in Oman it is a criminal offence. This makes it worse in Oman because the penalties for it will be criminal penalties, while in the UK it is mostly a matter of payment of financial damages.

In the UK, defamation occurs when a person makes a statement about a person and that statement lowers the opinion of that person in the mind of right thinking members of society. Only living people can be defamed, and a person can defend himself if he can prove (a) that what he said is true, or (b) that what he said was an opinion/comment and not a statement of fact. This is governed by the Defamation Act 1996.

The concept of defamation in Oman is completely different because it is considered a criminal offence. A person will be guilty of an offence if he ‘insults the dignity of any person’ through a public act, speech, shouting, writings, drawings, photography, videography, or the use of any sign. There is no definition in the law of what an ‘insult’ to someone’s dignity means. It is possible for the relatives of an insulted person to complain, even if that person was dead. A defendant may have a defence if he can prove that the other person provocated the defendant or if both parties exchanged insults.

In addition to the basic insult offence, Omani law also creates an special offence for insulting an employee in his professional capacity so that a person commits an offence is he ‘insults an employee through the speech, public acts, or publication while the employee performs his job or on the basis of his job’. �Both forms of insults are�governed by the Criminal Law 7/74.

Both of the Omani and British law are subject to changing moral values as what ‘will constitute a degradation of opinion in the mind of right thinking people’ will vary from time to time as will an insult under the Omani law. However, under British law it is clear that the matter is not subjective to what the defamed person though, but what society thought of the issue, however, under Omani law it is not clear if an insult is a subjective or objective issue. I do not have access to cases or court decisions to identify how this issue is decided in Oman.

Now that you have an idea of what is defamatory or not, you might want to know for how of much of this will you be liable for online. If you are a blogger or a website owner, defamation can occur on you website via one of two methods, the first one is when you post defamatory content on your blog, the second is when you someone posts a defamatory comment (defaming a third party, not necessarily you) as a response to a post you wrote.

If you wrote the post yourself on your own blog or website, you will be held liable for it. It is something you wrote yourself and if that post can be linked to you as an individual then you are liable, under both British and Omani law. To escape liability, you should try to use a defence such as ‘justification’ under British law or ‘provocation’ under Omani law.

However, if somebody else wrote a comment on your blog, then there is a chance that you might be liable for it even if you did not write it yourself. British and Omani laws differ completely in how this treat this liability.

British law generally realises that at many times website owners are genuinely innocent and have no control over content written by other people. They also realise that increasing the risk of liability of website owners can stifle the pace of innovation. For this purpose, the Defamation Act provides a defence for website owners if they can satisfy the following:

  1. he was not the author, editor, or publisher of the statement complained of.
  2. he took reasonable care in relation to its publication.
  3. he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

Not all websites will be able to use this defence because only certain websites will be not considered publishers (websites that have no effective control over actions of their visitors). An easy example of the use of this defence would be in the case of a forum moderator, who cannot practicaly monitor each single post made by the members, however, he will only succeed if he shows that he took reasonable care and did not just leave the forum without any moderation. This will obviously depend largely on the facts.

The case in Oman is very different, first of all, there is no general defence for website owners in the Criminal Law, but the Telecommunication Law makes the website owners, managers, and supervisors responsible for any statement published on their website if they incite or agree to publish that if it is contrary to public order and morality (Article 61(4)). This is NOT the same as an insult under the Criminal Law, it is a different criminal offence that does not require a defamed person and has a very wide scope. There are no defences under this section, but the requirement for consent might save a website owner if the event when someone hacks his website and puts a defamatory statement on it. In that case he obviously did not consent to that statement.

This article was clearly introduced to hold website owners liable for the content written by anonymous people regardless of whether or not the web master knew about it or not. It makes sense for a website owner to be liable because he has control over the website, but the law does not provide any defence for innocent web masters and the law does not seem to care about stifling the development of local web content.

A very interesting development happened through the passing of the Electronic Transactions Law in Oman, this law provides websites that fall under the definition of a “Network Agent” with a defence found under Article 14 to protect the Network Agent against any criminal or civil liability arising out of information included in an electronic record if the Network Agent (1) did not know any facts which could indicate the liability of this record and (2) instantly removed this information from all his systems once he knows about the liability arising out of this information.

The definition of an electronic record is very wide as it includes a “contract, record or message”, the definition of a network agent includes any legal or natural person who provides any services related to an electronic transaction, and an ‘electronic transaction’ is any procedure or contract concluded or performed fully or partially through electronic messages’.

The purpose of the Electronic Transactions Law is to provide certainty and protection e-commerce. It is based on a couple of UNCITRAL model laws and was drafted with the help of international consultants who realise the importance of such protection for businesses to operate, unlike the Telecom Law which introduced Article 61(4) explicitly to conclusively hold website owners liable without any thought to the impact of this web culture.

However, the wide scope of the nature of the Electronic Transactions Law means that any website that has a commercial nature can be covered by it. Surely an advertisement is a service related to an electronic transaction. This can make any website monetized by advertisement capable of being considered as a network agent, and from there you can argue that you should be able to use the defences under the Article 14 claiming that you are not the source of content written by other people and you merely provided access to it.

The fact that the Electronic Transactions Law came after the Telecom Law means that in areas of conflict the newer law will apply, so it does not matter that the Telecom Law says something else.

This is relatively a long shot, it has not been tested by the court and I am creatively interpreting the law in attempt to establish a defence. The court might have a completely different opinion on the matter. We will not know how it will be interpreted until somebody actually gets sued.

Categories
domain names

Our Right for Domain Names

Individuals in Oman are allowed to own real property, postal addresses, mobile phones, and emails, but not domain names. There is no justification for this prohobhition.
I wrote an article for the Times of Oman about the right of individuals to register domain names in Oman. You can view the article at the Times of Oman or you can get the PDF version of the article from here.

Categories
e-commerce e-signatures

Electronic Signatures and Authentication

(Photo credits: Viernest)

Doing business on the Internet requires two basic things to actually work: (1) legal legitimacy, and (2) trust in the identity of the other party which you want to deal with. 

It is hard to imagine nowadays anyone questioning the legitimacy of an online transaction on the basis of not having any physical being, but things were not always like this and many people used to argue that you cannot execute a contract online. In some places the courts rules that online transactions were equivalent to any other transaction if the legal fundamentals of it were satisfied (offer, acceptance, consideration, and intention to create legal relationship), however some other places did not. Eventually, all countries had to pass some sort of e-commerce legislation to ensure to everyone that a transaction will not be deemed void for the mere fact that it was conducted online. In Oman, this legitimacy was granted through Chapter 3 of the Electronic Transactions Law which simply says that the offer and acceptance of a contract will be deemed valid even if communicated online.  Chapter 2 of the same law gives digital documents the legitimacy of written document for all legal purposes as long as it is saved in the same manner in which it was created, sent, or received and as long as it can be retrieved back and can be used in a way that identifies its source and date it was sent or received.

Electronics signatures and authentication are related to the second fundamental requirement for e-commerce: identification of individuals electronically. Some laws distinguish between two types of electronic signatures, a basic electronic signature and an advanced electronic signature. A basic electronic signature is any identification method attached to a message to associate it with a certain individual in a distinguishable manner from others. This could be anything from typing your name below your message to scanning a copy of your hardwritten signature and attaching it to your email. Advanced electronic signatures are messages authenticated by a third party through stricted security system. Many legal systems do not make a distiction between these two forms in definition, but obviously in practice it is more logical to rely on an advanced electronic signature, yet a basic signature would not fail as a proof in court for just being so.

The issue of identification and advanced electronic signatures are not used by consuers as signatures per se, but are used to verify the authencity of commercial websites. Whenever you see a ‘lock’ sign in your browser this means that the website owner can be verified through a verification agency. If you click on it you should be able to check at the agency’s website the name and address of the business and when their identification certificate was made and when it will expire. The most famous authentication agency is Verisign. 

Of course, this certificate will not mean anything to you if you do not know or trust the website that actually issues it. This is why many countries regulate the industyr of online authentication and specify specific rules for practicing in this field. However, in places like the UK, this is a self regulated industry and the governmetn does not intervene. In Oman, the ITA is the government body responsible for regulating and licensing authentication agencies. This is illustrated in chapters 5 and 6 of the Electronic Transactions Law (69/2008).

Categories
patents

Invention Patents in Europe

(Photo credits: telethon)

Patents are monopoly rights for a certain period of time given by a state to those who create qualifying inventions in return of their disclosure to the public of the details of their inventions. 

This means that if you make an invention which you would like to sell and at the same time make sure that nobody else copies this invention you made, you will have to apply for a patent. The patent will usually grant you a maximum of 20 years to stop others from copying your invention. After these 20 years your patent will become public domain and anyone will be able to manufacture it without paying you any royalties or licensing fees. 

Patents grant a monopoly right only in the jurisdiction in which the patent was registered in. You will have to register in each country on its own if you wish to execrise your monopoly right in that country. This post will only talk about the patent system in Europe as the law differs from one jurisdiction to the other. I will talk about the US and Japan in later posts. (Oman’s law is very similar to American law, so I will talk about it in that post).

In the field of technology you can get a patent for a product, a manufacturing method, or a method to create a specific product. It is also possible to get a patent in certain circumates for a computer program.

There are currently two methods for getting a patent in Europe, the first is by going to each country on its own and registering for a national patent, the second is by going to the European Patent Office (EPO) and apply for a bundle of patents for all the member countries of the European Patent Convention. It is worth mentioning that this is NOT an EU intiative and it goes beyond the members of the EU. Getting your patent from the EPO is cheaper than going to all the European countries. An EPO patent is not a *super* European Patent, but a bundle of national patents from all the members. This means that once you patent is issued, if a national court decides that your patent is invalid for any reason then you patent will be invalid in that one country by itself and will not affect the validity of the patent in other places. This is pretty messed up, but because of the lack of a higher court of appeal to take care of European Patent, the industy will like to keep the current system as it is less risky than one which has a super European patent.

So what do you have to do to get a European patent from the EPO?  You simply have to fill a patent application and submit it to the EPO. However, for your patent to be granted, your creation must satisfy the requirements of the European Patent Convention (EPC), namely:

  1. It must be an invention.
  2. It must be novel.
  3. It must have required an inventive step to make.
  4. It must be industrially applicable.

We will go through these one by one:

Your creation must be an invention: The EPC does not define an invention but says that a patent may be granted for any invention in all fields of technology. However, explicity exludes inventions such as absolute theories, mathematical methods, aesthetic creations, mental acts, and mere presentation of information. The EPC also excludes inventions that contravene the public order, methods for treating the humn or animal body (methods – not products), and plan or animal varieties.

The requirement for an invention is usually not problematic, except for the fact that one of the exceptions under Art 52(2) is computer programs. The stance of the law in Europe regarding this is not clear, but I personally understand it as follows, if an invention is a pure computer application that has no novel tangible aspect then it will not be patented, however, if a computer program has some tangible aspect that extends beyound the code, then it will be patented. For example, a word processing application does not create by itself have a tangible aspect, but a program that affects the brightness of the screen depending on the time of the day has that tangible aspect. DO NOT CITE ME ON THIS, THIS IS MY PERSONAL OPINION AND I CANNOT BE BOTHERED TO DIG UP THE CASES/DECISIONS THAT SUPPORT MY OPINION AT THIS MOMENT.

The second requirement for the patent is to be novel. This is a quantitative absolute test that requires the patent to be a new. Art 54 of the EPC says that an invention is considered new if it does not form part of the state of the art.  This simply means that your invention is not like anything we have seen before the date the priority date (first filing date). This is an important because it requires the inventor NOT to disclose the functional details of his invention to the public before he files his patent application, if the information is already in the public, then the patent application will fail.

The novel will not be satisfied if a single disclosure in the relevant industry field (the fact that people from an irrelvent industyr know about it does not invalidate it) has a clear and unmistakable disclosure (the fact that it had to be *figured* out does not invalidate it) his made available  (it will be invalidated by making it available, no need to actually be seen or read) to a skilled a person (if the only person who heard or saw it did not understand what you were talking about then that will not invalidate it). 

The EPC provides an exception when the information was disclosed through an act of breach of confidence, or if the information was disclosed in an official international exhibition, if any of these two happen, the inveotor has six months from that date to make his application for that action not to invalidate his patent.

The requirement for an inventive step: This is a qualitative test. I think of it as the “It must be good enough to be protected” test. The patent will only be granted for inventiosn which are not obvious to a person skilled in the specific industry. If the invention is new, but it was an obvious progression from existing technology then it will not be protected.

Deciding whether an invention involved an inventive step requires the analysis of this step at the priority date, this is problematic because the patent examiner usaully looks at a patent months or even years after the patent was actually filed. So he must disregard all technological advancements that took place throughout that time and decide where there was an inventive step at the priority date. It is usually very easy to say in hindsight that any invention was obvious, so the EPO attempts to use a test called the ‘Problem and Solution Test”, which tries to envision the problem the invention tries to solve and see if this solution has an inventive step.

The problem and solution test consists of the following:

  1.  Indetifying the closest prior art.
  2. Determining the objective technical problem (the technical problem which the invention attempts to solve).
  3. examining whether or not the claimed solution to the problem is obvious for a skilled person in view of the state of the art.
An examiner will also look at secondary considerations IF he is not sure about the answer to the question 3 of the problem and solution test. These secondary considerations include a ‘long felt need’, ‘commercial success’, and ‘unexpected technical effect’. Secondary considerations will not rescue an invention that is obvious, but will be useful in close cases and those in doubt.

The invention must be industrially applicable: This is a requirement that is never unsatisfied because industry is defined as any industry (including agriculture – which is apparently not considered as an industry in France). But anyway, the requirement will only fail for inventions which are impossible to make.

Categories
domain names trademarks

Domain Names and Trademarks

There is an ever increasing number of domain name disputes relating to trademask, mostly because of incompatibility of these two systems.
What are Domain Names and Who Regulates Them?

Domain names are friendly shortcuts to web addresses, each website is actually located at an IP address made up of a string of numbers. The domain name system makes it easier to remember website addresses so that we can visit them later. There are two main types of domain names, those that end up with generic Top Level Domains (gTLDs) such as .com, .net, and .org, and those that end up with country code Top Level Domains (ccTLDs) such as .uk, .jp, and .ca.

gTLDs are regulated by an entity called ICANN (the Internet  Corporation for Assigned Names and Numbers). This is a non-profit corporation that has a contract with the Department of Commerce of the USA to regulate gTLDs. It’s supposed to *achieve global representation* of the internet community, but in practice the US government has a strong influence in it. ICANN has the ultimate control over gTLDs, it does not deal with the public directly in regard to domain names, but instead signs up registerars who them sell domain names to the public.

ccTLDs on the other hard are each regualted in a different manner depending on the country that owns the ccTLD, in the UK for example, a non-profit company named Nominet – which again, does not sell domain names directly, but instead signs up registrars who sell them. However, not all ccTLDs are handled the same way, some countries regulate and sell them through the same entity. In Oman, OmanTel used to regulate and sell them, however, the TRA is now responsible for regulating the .OM ccTLD and will soon start accepting registrars to sell domain names to the public.

What are Trademarks and What is Their Problem with Domain Names?

A registered trademark gives the right to its owner to stop people from using the same trademark on their goods. This is a state given right maid in essence to help consumers identify goods made by a certain seller.

A domain name is not a trademark, but it is a sign and a label which can be used as a trademark and its usage can in certain circumstances quailfy as a trademark infringement.

The link between the domain names and trademarks are obvious, but there is a conflict that makes this difficult, and that is the fact that trademarks are not absolute monopolies for the use of the term as the sytem allows different people to register the same trademark for two different business.  For example, the trademakr Vista might be registered by Microsoft for computer equipment and computer software, and registered at the same time by someone else as Vista for selling eye health products. This is legal in most jursdictions around the world, but has some restrictions where the use of a similar sign on an unconnected product might confuse the public to the source, or where the use of a trademark might harm or dilute the reputation or power of the trademark.

The fact that more than one person may be legally allowed to use the same trademark does not work well with domain names because only one person can register the same domain name all over the world. There is only one Vista.com, so who has the right to it?

If two people own the same trademark, usually the first person to register the domain name has the right to use it. However, there are cases when people who do not have the right to the domain name buy it, several of these incidents are described by the term below:

  1. Domain Name Squatting – This happens when someone buys a domain name in bad faith to take advantage of a trademark, either by attempting to sell it to the rightful owner later or to gain profit by advertising or attracting misled constumers to his website.
  2. Domain Name Typo Squatting – This happens when someone buys a domain name that contains a commonly mispelt version of a trademark (For example: Gooogle.com instead of Google) and then uses it in bad faith.
ICANN has a procedure called “Uniform Domain Name Dispute Resolution Policy” (UDRP)  which all of its registrars are forced by contract to submit to in the following case:
  1. A domain name is identical or confusingly similar to a trademark in which a complainant has rights.
  2. the current registrant has no rights or legitimate interests in respect of the domain name; and
  3. the domain name has been registered and is being used in bad faith.
If all of these conditions are satisfied then the domain may be transferred to the complainant. This procedure is supposed to be a quicker and cheaper that traditional litigation. Most ccTLD registries follow a very similar procedure to the UDRP.