Blog postings can backfirfe, collide!

Blog postings can backfire

PUTIK LADA By FOONG CHENG LEONG

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Social media influence has hit court proceedings, with lawyers trolling blogs and Wikipedia in search of material that can help them argue the case for their clients.

LAST year brought further interesting development to social media and laws all around the world. Cases making references to social media tools saw an increase.

Social media was a tool for lawyers and litigants to help parties to fight their cases. Social media was also the cause of some parties’ mortification and incarceration.

In one High Court judgment last year, the judge recognised the publication of defamatory blog postings by a husband as one of the grounds to present a divorce petition before the expiry of two years from the date of marriage.

He also recognised that a defamatory statement in a blog posting operated in a borderless realm, and would continue to exist until the maker of the blog removed it.

The challenge against the constitutionality of S. 233 of the Communications and Multimedia Act 1998, the provision commonly used against Internet users, was dismissed by the High Court.

In this case, the defendant was charged with making disparaging remarks against the Sultan of Perak during the struggle between Barisan Nasional and Pakatan Rakyat. The court held, among other things, that the section did not impede freedom of expression. S. 233 is to ensure that the freedom given by the Constitution is exercised responsibly.

The use of Wikipedia as a reference is increasingly recognised in Malaysia, notwithstanding that the reliability of Wikipedia is questionable, as anyone can add or edit an entry in Wikipedia.

Nevertheless, the reliance on Wikipedia by our courts can be traced in reported cases as early as 2007.

Last year Wikipedia was referred to in Etonic Garment Manufacturing Sdn Bhd v Kunn-G Freight System (M) Sdn Bhd [2010] 1 LNS 13 (for the meaning of freight forwarder), PP v Murugan a/l Arumugam [2009] 1 LNS 1759 (for the meaning of atherosclerosis) and Thai Long Distance Telecommunication Co Ltd & Anor v Malaysian Maritime Dredging Corpo­ration Sdn Bhd (Kuala Lumpur Suit No: D-22-352-2005, for the meaning of chart datum).

Social media influence had also hit court room proceedings. It is common in Malaysia for people, in particular reporters, to tweet live from the courts. In the United Kingdom, the Lord Chief Justice issued a guideline for the use of live text-based forms of communication from court.

In this guideline, the Lord Chief Justice approved the use of Twitter for court reporting. However, in the US, certain courts ban the use of social media by juries.

In the US case of Romano v. Steelcase Inc, 2006-2233 (N.Y. Super. Sept. 21, 2010), Kathleen Romano sued Steelcase Inc for injuries she suffered after she fell off an allegedly defective desk chair manufactured by Steelcase Inc.

As a result of the fall, she claimed, she suffered restricted movement of her neck and back and “pain and progressive deterioration with consequential loss of enjoyment of life”.

In defence, Steelcase applied to access Romano’s current and historical Facebook and Myspace pages and accounts which are believed to be inconsistent with her claims in the action concerning the extent and nature of her injuries, especially for loss of enjoyment of life. The court granted Steelcase’s application.

Similarly, in McMillen v Hummingbird Speedway Inc, et al, Court of Common Pleas of Jefferson County, Pennsylvania, Civil Division, No. 113-2010 CD, Opinion on Defendants’ Motion to Compel Discovery (Sept. 9. 2010), the plaintiff sued the defendants for injuries suffered.

The defendants claimed that posts on the public portion of his Facebook page showed that he had exaggerated his injuries. The court granted the defendants access to the plaintiff’s private portion of his Facebook and Myspace account to determine whether or not the plaintiff had made any other comments which impeached and contradicted his disability and damages claims.

Closer to home, in a reported Industrial Court case, an employee claimed that she was forced by her employer to resign.

In response, her employer argued that the resignation was voluntary and they produced extracts of the claimant’s blog which showed the claimant had written about her feelings regarding her employment with the employer.

In it, she stated that she wanted to leave the company and admitted that she went for job interviews as she had already decided to go away.

The Industrial Court chairman relied on the blog entries to find that the employee had intended to leave and found that she had gladly tendered her resignation to take on new employment.

In Australia, a hairdresser won compensation for wrongful dismissal after losing her job for making unflattering remarks about her employer on her Facebook.

In Miss Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358, Commissioner Michelle Bissett for Fair Work Australia said that posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.

It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity.

This year brings another exciting watershed to Malaysia’s social media legal sphere. The Personal Data Protection Act 2010, which governs the processing of personal data, is pending enforcement.

Proposed amendments to the Copyright Act 1987 have been drawn up in the form of a Bill to exempt Internet service providers from liability for copyright infringement under certain circumstances.

The Bill also empowers the court to order an Internet service provider to disable access to infringing material.
Furthermore, the so-called Internet Service Providers Liability Act may be passed to compel Internet service providers to take action against their users if they download songs or movies illegally.

The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, visit www.malaysianbar.org.my.

When blogs and big business collide

OPTIMISTICALLY CAUTIOUS By ERROL OH

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REMEMBER a blog called Sime Darby Watch (SDW)? It has been completely wiped out when the mysterious blogger he never revealed his identity on the blog abruptly called it quits in April 2009. It's therefore hard to pinpoint when it was created, but early 2008 seems to be a safe bet.

One news report puts it as March 2008. That was not long after the completion of the mega-merger that saw Sime Darby Bhd, Kumpulan Guthrie Bhd and Golden Hope Plantations Bhd becoming a single entity we now know as Sime Darby Bhd.

It was apparent that the blogger had not come from the old Sime Darby. In fact, he explained that the blog was “for employees of the now-defunct Kumpulan Guthrie and Golden Hope to voice their views and concerns”. The blogger clearly had access to a lot that was going on at the new Sime Darby and was decidedly critical of its management, which was dominated by executives from the old Sime Darby. He often brought to light major developments and issues at the company that had not been publicly available.

SDW was easily the most well-known among the blogs that targeted local businesses. Sime Darby was (and still is) one of Malaysia's biggest companies, and the merger had enlarged it further although not everyone thought the exercise was a good idea. And as a government-linked company, there was (and still is) a political dimension to many of its actions and decisions. These factors guaranteed a ready audience for dirt on Sime Darby.

The blogger's ability to consistently expose alleged wrongdoings and his writing skills in lambasting his target, also helped SDW garner a significant following.

No other anti-corporation blogs have so far come close to SDW's influence. Most have been short-lived, seldom lasting beyond a handful of entries after the bloggers had run out of things to say or have simply exhausted their motivation to blog.

However, another blog has recently surfaced, promising to go on “for months to come to weed out corporate misconducts (sic) as a service to the taxpayers and Malaysians in general”. The blog's title, zarinahtakesapaycut, is a swipe at Securities Commission chairman Tan Sri Zarinah Anwar, but the principal target is actually professional services firm PricewaterhouseCoopers (PwC).

The anonymous blogger has been prolific so far. The blog kicked off on Dec 1 last year with four postings. Until yesterday, there have been 34 more. That's an average of one posting every 36 hours! He has also been persistent (and somewhat pesky), compiling an email list to ensure that all those on the list including this columnist and some colleagues are notified whenever the blog has a new entry.

The blogger definitely knows a thing or two about grabbing attention. The headlines for the blog entries are usually cleverly crafted and compelling. The blogger has been creative and resourceful in generating angles and themes that suggest that the blog is constantly introducing fresh information and highlighting new players and developments. For example, a Dec 31 entry cited a May 2009 article by this columnist to back up the blog's claims about PwC.

The truth is, zarinahtakesapaycut is a relentless attempt to discredit PwC by harping on the same few issues. The bias is obvious. Only the hopelessly clueless will think that the blogger is being objective. Even so, we can't dismiss the blog with the wave of a hand, partly because the blogger is insistent in bombarding readers with details.

This is not the place to dwell on how much of the blog is factual. The point here is that the blogosphere has become part albeit a small one for now of the corporate landscape. However, we have yet to properly understand how we treat the information we get from the blogs. The idea of regulating blogs is an incendiary matter and we may not even have to go there but there ought to be more discussion and engagement within the business community about this subject.

How can we not be ambivalent about these anonymous bloggers who attack listed companies, Big Four firms and business regulators? On one hand, we are thrilled by the pugnacious muckraking and the whiff of scandal, and we cheer the notion of the lone guy, armed with a PC and Internet connection, going up against the deep-pocketed, soulless corporation? Yet, can we really afford to ignore the questions about the bloggers' motives and integrity, and the veracity of the information they put up in cyberspace?

Sure, we can agree that everybody ought to take the content of these blogs with a pinch of salt, but that does nothing to address the lack of fairness and transparency that can occur. Besides, if the bloggers are indeed accurate and have revealed stuff that the companies had intended to hide, our scepticism may well work against us. And what if the bloggers are way off the mark, or worse, are deliberately spreading lies? In such cases, sometimes, no amount of salt can undo the damage suffered by the targets. And when the businesses suffer, their stakeholders (such as the minority shareholders) feel the pain as well.

Yes, legal action is an option, and yes, the mainstream media isn't perfect either. We know this, but what we need to learn next is how to effectively deal with irresponsible blogging. In business, as in politics, one of the worst things that can happen to us is when our ability to choose what to believe in, is weakened by bad information.

● Deputy executive editor Errol Oh doesn't have a blog.

The happiness index

THINK ASIAN By ANDREW SHENG

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A new metric of human well-being should capture areas such as job security, health and education


ARE we happy with our quality of life? GDP seems to be growing, but most people feel that the quality of life has become a rat race.

In 2008, just as the financial crisis deepened, French President Sarkozy asked Nobel laureate Joseph Stigliz to form the Commission on the Measure of Economic Performance and Social Progress, comprising well known social thinkers and philosophers, such as Indian Nobel laureates Amartya Sen and Kenneth Arrow, Turkish economist Kemal Dervis, former World Bank chief economist Francois Bourguignon and other leading Western professors to come up with fresh thinking on measuring the quality of life.

The commission report came out in late 2008, but its important conclusions and messages were perhaps overshadowed by the financial crisis.

Nevertheless, as governments and companies prepare for the recovery, it is more timely than ever to think beyond GDP (gross domestic product), namely not the quantity of how much we produce or consume, but its quality.

It is interesting that a French President has commissioned such a study, not the British, American or Japanese.
The French don't have the macho precision engineering of the German car nor Japanese technical perfection, but you know a French car when you see one for its individualistic and sometimes idiosyncratic design, but more for its comfortable ride.

You only have to look at the way Asia has rushed head long at full speed on pushing growth to realise that this may not be what the new middle class (and indeed everyone) would be caring about.

I was impressed when one senior Asian professional economist started to talk about beauty and happiness as one measure of economic aspiration.

The Stiglitz Commission started with the premise that GDP has increasingly become an inadequate measure to gauge the human sense of well-being over time in respect of its economic, environmental, and social dimensions, particularly sustainability.

Thus a new metric of human well-being should capture these dimensions economic and job security, health, education, personal and work environment, a sense of equality and respect, connectivity with family and friends, a pleasant natural environment, and physical security.

There is of course a whole generation who seems to care more and more about Chanel handbags, iPhones, Chateau Lafite and all the icons of material wealth. Others are going into yoga, qigong or religion.

There is the digital generation who communicate to their parents through Facebook, Youtube and Twitter, rather than talking face to face.

Social change is happening when governments shake when SMSes start flying with news of another piece of social agitation. But the bulk of Asian society is still struggling with making ends meet.

In many parts of Asia, we are struggling with crumbling social infrastructure, overcrowding, environmental pollution and social disquiet.

Social injustice is being expressed even in very wealthy and successful Asian cities.

This month, we were stunned by the random and violent shooting of politicians and the crowd in Arizona.
All of a sudden, we are reminded that in addition to our material living standards, such as income, most of us care a lot about our personal and physical security. What can governments and civil societies do?

The Stiglitz Report is a very useful reminder that we should begin by measuring what people care about, not just in terms of the quantity of production or consumption, but the quality of well-being.

The report reminds us that GDP is a very narrow concept and does not measure many qualitative issues that human beings care about.

For example, most people feel that official statistics, such as CPI, do not reflect their own perception of inflation.

The GDP as a concept does not measure or under-count what households and civil society produce.

They certainly do not incorporate any measure of inequalities, since the average per capita GDP can disguise the sense of growing disparity.

Most of all, GDP statistics do not measure at all environmental degradation or the decay of physical infrastructure around us.

As Asia is going through rapid changes in demographics, urbanisation and social change, it is not surprising that the metrics that we are using to measure our economic success or failure is not up-to-date.

It is as if we are driving a car whose speedometer shows that we are accelerating at 70 miles per hour, but there is no indication that we may be going into a bad neighbourhood or that the car may be falling apart.
Indeed, if we focus on speed, we may neglect the direction that we are heading towards. Speed comes before a crash.

Globalisation has created huge opportunities as well as threats. Governments need to appreciate that in the global competition for talent, people can easily walk with their feet.

But they will not walk if they love the city or country-side they live in. We all want a sense of liveability clean air, good health, great culture, nice people, no fear of physical security.

Well-being is a sense of community that people care for each other, a feeling of being more equal and mutual respect.

We should not see strangers as another mugger, nor a policeman as a person to be feared.

We want good governance in our society, most of all a caring community that looks after the poor, the weak and the under-privileged.

As governments struggle with how to deliver better governance, we need to begin with better measures of social well-being than GDP.

Unfortunately, the Stiglitz Report is only a beginning, by pointing out the weaknesses of GDP; but it has not operationalised how we arrive at a better measure.

Now that Asia has reached the head table, one Asian government or statesperson should take the leadership of chairing a roundtable of statistical experts to arrive at a better measure of social well-being than just GDP.
We need Stiglitz Report 2.0, with more Asian input. Welcome back, Joe.

Andrew Sheng teaches at Tsinghua University and is author of the book “From Asian to Global Financial Crisis”.

Common interests shared

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President Hu Jintao meets US Senate Majority Leader Harry Reid on Capitol Hill in Washington on Thursday. [Photo/Agencies]

WASHINGTON - President Hu Jintao and his US counterpart Barack Obama agreed to "share expanding common interests" while pledging closer cooperation in areas that included trade, energy, the environment and protection of intellectual property rights, as they held a summit in the White House on Wednesday.

"We both agreed to further push forward the positive, cooperative and comprehensive China-US relationship and commit to work together to build a partnership based on mutual respect and mutual benefit, so as to better benefit people in our own countries and the world over," Hu told a post-summit news briefing.

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Obama said he "absolutely" believes "China's peaceful rise is good for the world, and it's good for America.

"We've shown that the US and China, when we cooperate, can receive substantial benefits," he said.

Hu said China will continue to provide a level playing field for US investors and urged the US to relax its restrictions on high-tech exports and offer a fair environment to Chinese enterprises investing in the US.

He also asked Washington to recognize China's full market economy status.

With increased partnership a priority for both countries, Hu touched on the subject when he addressed a welcoming luncheon hosted by the US-China Business Council and the National Committee on US-China Relations in Washington on Thursday before leaving for Chicago.

"The China-US relationship is not one in which one side's gain means the other side's loss," Hu said, addressing concerns expressed by some people in the US over the increasing economic and political competitiveness of China.

It is only normal, in any relationship, to have disagreement and friction, Hu said. But he added that a strategic and long-term perspective will ensure relations will not be affected or held back by any individual incident at any particular time.

A joint statement was issued after the summit, which was also used to unveil a series of deals, including China's purchase of 200 Boeing aircraft. US officials said the $45 billion deals would support an estimated 235,000 American jobs.

During the post-summit news briefing, the two leaders spoke glowingly about cooperation while trying to seek a more mature and respectful relationship. They also shared some unexpected laughs. 

"We want to sell you all kinds of stuff," the US president said, drawing laughter from the packed room. "We want to sell you planes. We want to sell you cars. We want to sell you software." 

While there were few signs the leaders had ended disagreements on issues such as the yuan - which Obama said is undervalued - and human rights, both sides, however, promised to seek further cooperation on the world's most pressing problems and embrace an era of "friendly competition".

After an event-packed day that also included a meeting with business executives, Hu was hosted at a gala state dinner, sprinkled with stars such as action hero Jackie Chan and singer Barbra Streisand, in White House rooms bathed in purple and red lights.

"While it is easy to focus on our differences, in cultures and perspective, let us never forget the values that our people share," Obama said in a toast to Hu, pointing to mutual hard work, sacrifice and love of family.

Experts hailed achievements made by Hu during his second day of the US visit.

Yuan Peng, an expert on US studies with the China Institutes of Contemporary International Relations, said the joint statement was a guideline for relations in the next decade and beyond.

But he noted "it is important to implement the statement through pragmatic mechanisms and concrete actions".

Jamie Metzl, executive vice-president of the Asia Society, said it is a positive sign that the two presidents addressed differences in areas such as human rights and the yuan exchange rate.

"Both sides are discussing areas for collaboration. And the issues that divide us are being explored in a positive and constructive way." 

Philip Levy, resident scholar at the American Enterprise Institute, said there has been a shift in the Obama administration's China policy.

"The House Committee on Ways and Means has made it clear that they are less interested in denunciations of currency practices than in practical attempts to solve trade problems," he told China Daily.

"It is not that the US is any less interested in seeing a currency appreciation ... rather, it seems to be a constructive attempt to find those issues where cooperative action is possible." 

Charles Freeman, at the Center for Strategic and International Studies, said the Obama administration's tactic to reduce strategic mistrust has led to greater emphasis on cooperation in global affairs.

"It now recognizes that China is a considerable ... mover in that architecture. By elevating its assessment of China's role in global affairs, however, the US expects China to play an active role and reduce threats to the (US-led) international architecture," said Freeman.

Yukon Huang, senior associate in the Carnegie Asia Program at the Carnegie Endowment for International Peace, said the two countries are trying to find common ground for more productive dialogue.

"The economic woes of the US only exacerbate the tension (over the yuan exchange rate). But China's economy is growing at an average 10 percent per year. It has more flexibility to find a win-win solution."

This year will see more high-level exchanges between the two countries.

Both presidents will meet again at the 2011 Asia-Pacific Economic Cooperation meeting in Hawaii.

US Vice-President Joe Biden will visit China later this year to meet Vice-President Xi Jinping, who will pay a return visit.

Source: Zhang Yuwei and Ariel Tung in New York, Li Xiaokun in Beijing, AP, and Reuters contributed to this story

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China to cut reliance on US dollar

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Yuan to Trade With Australian, Singapore Dollars

By Emma O’Brien, Blooberg

 

China will allow direct trading of the yuan against the Australian and Singaporean dollars as the world’s largest exporter strives to reduce the role of the greenback in trade, Standard Chartered Plc says.

Spot trading of the yuan versus Malaysia’s ringgit started in August and Russia’s Micex exchange has traded the yuan against the ruble since Dec. 16. HSBC Holdings Plc plans to offer spot trading between the yuan and the Turkish lira in March, according to a Jan. 11 statement.

“The yuan internationalization process is clearly accelerating and I would expect this to continue, particularly in Asia,” Callum Henderson, global head of currency research in Singapore at Standard Chartered, the U.K. bank that generates more than three quarters of its earnings from Asia, said in an e-mail interview yesterday. “We expect more countries, such as Singapore and Australia, to see this kind of bilateral currency agreement in due course.”

China is allowing greater use of the yuan outside its borders as it seeks to reduce its reliance on the dollar, particularly in trade transactions with neighboring countries. Asian exchanges that trade palm oil derivatives and gold are already starting to accept Chinese currency for payment and collateral. The central bank in Beijing is considering allowing yuan held outside of mainland China to be used for inward investment, Zhang Jianjun, president of the Shenzhen arm of the regulator said Jan. 18.
Extending Trading

The ringgit weakened 0.3 percent to 0.4648 per yuan by 5:58 p.m. in Kuala Lumpur, according to prices compiled by Bloomberg. The ruble lost 0.3 percent to 45.55 per 10 yuan by the end of the one hour trading session in Moscow, which Micex chief Ruben Aganbegyan said last month would be extended should volumes increase.

China is Malaysia’s largest trading partner after Singapore and is tied with the Netherlands as Russia’s biggest, overtaking Germany last year. China became the largest trading partner of Australia, the world’s biggest iron-ore and coal exporter, in 2007, according to trade ministry figures. It is Singapore’s third-largest trading partner after Malaysia and the European Union.

Citigroup Inc. in Moscow is about to start offering yuan- ruble trading to its clients, according to Head of Foreign Exchange Trading, Denis Korshilov. “Currently it’s 95 percent customer orders, importers mostly,” he said by e-mail yesterday.

Dollar Settlement Reduction

The expansion of direct yuan trading outside of China will remain mainly for “trade settlement” in the medium-term, Standard Chartered’s Henderson said.

Should more countries introduce direct trading of the yuan and companies that trade with China start to utilize it, “the yuan internationalization process may be part of a more general reduction in dollar settlement,” he said.

President Barack Obama has criticized what the U.S. sees as China’s policy of keeping the yuan weak during Chinese President Hu Jintao’s visit to the country this week. The yuan is “undervalued” because of Chinese intervention, and contributes to the U.S.’s record $28 billion trade deficit with the Asian nation, Obama said after a meeting between the two leaders in Washington yesterday.

Chinese Premier Wen Jiabao said in March he was “worried” about holding assets denominated in the greenback.

American companies see hopes for future in China

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The American Chamber of Commerce in Shanghai said US companies have achieved great success in the past year in China, and are optimistic about the two nations' closer ties and win-win prospects.

The report was released on Wednesday as President Hu Jintao is paying a state visit to the United States.

The Chamber said despite challenging market conditions and an increasingly competitive business environment, 87 percent of the 346 US companies in China reported revenue growth, surging from 47 percent in 2009 and 77 percent in 2008.

Seventy-nine percent of them said they are in the black, up from 65 percent in 2009 and 70 percent in 2008.

The report, entitled China Business Report 2010-2011, showed 61 percent of the US companies increased their market share in China, up from 40 percent in 2009 and 52 percent in 2008.

Brenda Foster, president of the Chamber, said there are clear challenges to doing business in China, but reiterated a statement last week from US Treasury Secretary Timothy Geithner that "the economic strings of US and China are in many ways complementary".

"And although China faces a complicated set of challenges, it is very much in the interests of not only the American business community, but in the interests of the United States to well manage China's business event," Foster said.

"The result of this year's survey shows that the financial performance of American companies in China improved in 2010, following what had been an uneven growth between 2008 and 2009. Not only have US companies recovered, they are reporting all-time performance highs and remain optimistic about their business prospects," said Foster.

Although showing impressive financial results, US companies report that China remains a challenging business environment for a host of reasons. Finding enough qualified staff is the No 1 business challenge, and competition is picking up not only between US and other foreign companies but between US and Chinese companies - both private and State-owned enterprises.



"This year's survey results indicate that US companies in China have come to expect challenges in the China market and have weighed them against the opportunities and have found a way to succeed despite them," said Foster. "Nonetheless, it is essential that the US continues to aggressively engage China to address key business challenges that hinder market access and impact future investment."

New additions to this year's report are the Chamber's China Business Climate Indices, which measure business performance across the three broad measures of success, confidence and the welcoming environment for US companies in China.

Businesses in China's quickly growing retail sector top the success index, auto companies ranked as the most confident about their future opportunities, and chemicals and electronics companies are among the industries that feel the most welcome.

"US companies in China are performing at a high level and will continue to do so," said Michael Klibaner, national director and research head at Jones Lang LaSalle China, a leading global property service firm. "But what we show in this year's report is that just as there is no one 'China market', the challenges and opportunities for US companies vary by market sector and by industry."

Optimism regarding the China market continued in 2010. About nine out of 10 US companies in China forecast a revenue increase for 2011. China is the No 1 priority for 20 percent of US companies, and the percentage of companies expecting to increase investment in China by more than 15 percent more than doubled in 2010.

"There has always been a great deal of optimism about the China market, mostly based on the hope of future opportunity," said Steven Ganster, managing director of Technomic Asia, a market strategy consulting firm based in Shanghai.

"But now we're seeing a more mature or seasoned optimism, grounded in the reality that succeeding in China is critical to the future of the company no matter the challenges it presents," he said.

This year's survey was conducted online from mid-November to early December. A total of 346 companies participated, yielding a response rate of 25 percent.

The American Chamber of Commerce in Shanghai is the largest and fastest growing American Chamber in the Asia-Pacific region.

Source: China Daily: 
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