Public Consultation on Anti-Spam Regulations

The TRA has finally decided to take action about the spread of spam in Oman and is seeking public consultation about their upcoming anti-spam regulations [PDF].

The new proposed regulations will require businesses to have the explicit consent of any person to whom they send a commercial message using any medium. The regulations will provide an exception for institutions that have an existing relationship with a person and will enable individuals to have the right to stop receiving such messages.

The TRA is proposing a system where an offense would be established even if only one message has been sent without consent, will provide individuals with the right to complain to the TRA, and will provide the TRA with the right to impose sanctions that include imposing a financial penalty not less than RO 1000.

The regulations will also provide guidelines as to the content of the message, its size, and will require the header to include words such as “Commercial” or “ad”.

These regulations are still in the public consultation stage and there is no guarantee that they will be officially passed.

You can read the PDF document issued for public consultation at this link. The last date for submitting your opinion on these documents is the 25th of July.

My Website Got Blocked by Omantel

Censored

In Oman, the currently only Internet Service Provider in the country, Omantel, has the ability to block any website it desires, we assume that this is done to censor pornographic websites and websites that attack the current government. We do not know if this is an automated process or one manually managed by actual employees of the company. I am not sure on what legal basis it has this authority to censor website because I do not have access to all the laws from here.

Anyway, sometime last week, I discovered that my website, myITLawyer, got blocked by Omantel making it inaccessible from Oman. I do not know when exactly in got blocked because I have been away from the country since the beginning of this year. Once Omantel blocks a website, there isn’t anything really that you can do about it other than send an email to an account called “admin@omantel.com”. I did that, but instantly the email bounced back indicating that it could not reach a certain recipient.

I decided to make a complaint to the Telecommunication Regulation Authority as it is responsible for receiving complaints against ISPs. Its Consumer Guide specifies that you have to give the operator 15 days to resolve the issue before you make a complaint. During this period, I asked a friend of mine in Oman to call Omantel and tell them (1) to unblock the website, and (2) that their email account has a problem. There is no special line that you can call to solve censorship issues, the help desk person offered no solution other than “to send a message to the specified email account” even though we told him that messages bounce back. After I heard this from my friend I sent another email to that account and the message again bounced back.

When the 15 days passed I sent my complaint to the TRA who responded after one business day saying that they forwarded the complaint to Omantel and that they will look into the issue. A whole week passed, my website remained blocked, and I haven’t heard from anything, I emailed the TRA again this morning, and then responded within hours saying that my website is now unblocked, and now it is. Of course I never heard ANYTHING from Omantel at all during this period.

It took me exactly ONE MONTH to get my website unblocked since the day I sent my first email to Omantel. I expect that it had already been blocked for a month before I discovered it.

Currently, the only way to have your website unblocked if it gets blocked by Omantel is to follow the procedure I followed, if the TRA did not solve my problem my next step was to take legal action against the TRA at the Administrative Court.

I cannot believe how ridiculous this censorship business is. In October last year Omantel blocked Gmail, Blogger, and a number of other Google websites by mistake. Imagine the damage blocking Gmail did to businesses and individuals. My website was blocked for a whole month in which I obviously had to continue paying for hosting. It is unbelievable that Omantel seems to be totally unaccountable and has absolute authority to block and unblock whatever it wishes randomly.

In the age of user generated content attempting to censor the internet is just totally useless. Anyone in Oman RIGHT NOW can use any search engine and find a porn blog in less than 5 minutes, you don’t need to be a computer genius to do it and it is IMPOSSIBLE to censor everything when a new site is created every second.

It is just unbelievable.

Network Operators in Oman Oppose Sim Locking

Oman Sim Lock

In May 2009, the TRA issued a issued a public consultation on the regulatory position on mobile sim locking. The current position in Oman is that sim locking practices are not allowed. The TRA issued a paper asking the public’s opinion on the matter. The TRA’s initial opinion seems to support allowing sim locking as that could improve the mobile market. It feared that this might lock customers into specific networks, but suggests that the solution could avoided through the following:

  1. Creating an obligation on operators to continue to provide connection packages without handsets for those who do not want a bundled connection.
  2. Creating an obligation on operators to inform customers of the contract details.
  3. Create a maximum cap on the lock period that does not exceed one year.
  4. Create an obligation on operators to provide early termination terms.

Surprisingly, all operators who responded to this consultation paper opposed allowing sim locking.

Renna, Oman’s first MVNO, opposes the practice of sim locking because (1) they believe that handsets locks could be easily broken and (2) that smaller players (like Renna) won’t be able to match the prices offered by bigger companies through subsidy.

Nawras opposes sim locking on the grounds that it shift the focus from competing on service price and quality into a competition on handsets. Nawars claims that handset subsidies are usually used in immature markets as a “catalyst to improve the uptake” of mobile services (which is obviously not true because it is the normal practice in mature markets like USA and UK), that it will increase customer acquisition cost, it will make the market less transparent, and that customer choice will “ultimately be restricted by virtue of” the contract commitment period.

Oman Mobile also opposes sim locking, though not as absolutely as Renna and Nawras saying that “Sim Locking implementation in Oman at this stage will not necessarily achieve the main objective of ensuring” customers choice. Oman Mobile is of the opinion that this might delay the introduction of new handsets as that will be in the hands of operators instead of consumers.

On the other hand, all non-corporate respondents seems, including the Oman Association for Consumer Protection, seem to support the initiative and think that it will be in the interest of consumers.

I personally think that introducing sim locking would be in the benefit of consumers. Currently, mobile handsets are very expensive in Oman and the iPhone has not been released in Oman, probably because no mobile operators from Oman approached Apple.

Whether or not the sim lock could be broken is not buy itself a huge problem, the benefit of the lock to the operator is usually in ‘locking the customer’ into the network for the contract period, whether or not the phone gets unlocked the customer will still be under an obligation to pay up his monthly charge. Fear of defaulting customers could be minimized by introducing qualification requirements in a way comparable to the way a bank loan is granted – (even Oman Mobile made that comparison in its response). This could be further minimized by requiring a deposit from new customers that is claimed back within six months.

There is no doubt that the introduction of sim locking will not be in the interest of smaller players like Renna as they will not be able to easily compete against bigger player like Oman Mobile as they will subsidize the prices through mass purchases, but it can also be using as a great marketing technique by acquiring exclusive mobile phone deals (e.g, the iPhone on AT&T).

There is a risk that the market can become way too dependent on phone subsidies in the sense that mobile phone manufacturers could eventually find it hard to sell mobile phones if no network operators wishes to sell that phone, but that can only act as a market force that pushes manufactures to make phones good enough for operators to pick, instead of saturating the market with crappy devices.

You can read all the responses here.

Ali Al Zuwaidi’s Trial Outcome

Ali Al Zuwaidis Trial
(Baby photo credits: utpal)

Earlier today the court issued its ruling on the two cases of Ali Al Zuwaidi. The first case involved a defamation claim made by the CEO of OmanMobile  for content published on Omania2.net – an online discussion board which Al Zuwaidi moderated. Posting on various forums report that the court held that Al Zuwaidi is not guilty of the offenses of Article 61(4) of the Telecom Act. This Article specifies that a forum moderator is to be held responsible for content written by third parties on his forum if that content is contrary to public order.

It is unknown how the court reached the conclusion that Al Zuwaidi is not to be held liable, did the judge concluded that the defamatory content in that post did not amount to material contrary to public order? was it because the content did not remain for a long period on the website, or was there another defence? We don’t know.

The second case involved the disclosure of a confidential government document by Ali Al Zuwaidy on the forum. Al Zuwaidi, who is a civil servant, acquired a document through the course of his employment and then published it on a number of Omani discussion boards. The document disclosed the government’s intention to have a popular radio show pre-recorded instead of airing it live to ensure it’s ability to censor anything on it if it wishes. The court held that Al Zuwaidi was guilty of an offense for leaking a confidential government document in accordance with Article 164 of the Criminal Law 7/74. Al Zuwaidi was sentenced for a 10 day imprisonment and the payment of a fine of RO 200 ($500).

The court held that the time served during the interrogation (11 days) is to be deducted from the prison sentence, so in practice Al Zuwaidi would be required to pay the fine.

As a civil servant, Al Zuwaidi job might also be terminated in accordance with Article 140 of the Civil Service Law for committing a criminal offense or an offense related to trust and honor.

The actual text of the judgement is expected to be available to the public in a period of two weeks.

The Booz Allen Defamation Trial in Progress

The Booz Allen Hamilton Case
(Baby photo credits: utpal)

An anonymous member called “Boozallen” published a post on Omania2.net defaming the CEO and CTO of Oman Mobile. The CEO complained to the Public Prosecution which took action under Section 61 of the Telecom Law to prosecute the administration of the website.

There are many interesting points in this case, but it is necessary to talk about the facts. On the 20th of August 2008, the offending post was written in English on Omania2.net, but as An Arabic forum, the moderator named Ali Al Zuwaidy temporarily deleted this post on the grounds that it was written in a foreign language, however, after receiving some messages from other members, he unlocked it and made the following post:

 
أخي الكريم..
قمت في المرة الأولى بغلق الموضوع بسبب الكتابة باللغة الانجليزية، لكن بعد مراجعة الأمر مع احد الأخوة قررت فتح الموضوع وابقائه مع دعوة أي شخص لترجمة الموضوع ليتسنى للجميع الاطلاع عليه…
 

Translation: Generous Brother, I initially locked the topic because the writing was in the English langauge, but after reviewing the issue with one of hte brothers I decided to open it and keep it while inviting any other person to translate the topic so that everyone can view it.

On the 21st of August, the administration of the website decided to remove the thread from the public because of their fear that it offended a website policy on not posting anything that might violate the ruling system of the country. 

The complaint by Oman Mobile was made after the thread was removed from the forum.

This case is interesting because it probably is the first one to be about a post written in the English language. All previous major cases were written in Arabic, the case is also intereseting because the identity of the original post author was not discovered, and because the action is made against a specific moderator and not the owner or main administrator of the website. The court made the decision to take an action again Ali Al Zuwaidi specifically because he responded to the thread and actively unlocked it after it he locked it before.

The case is currently in progress and the next hearing will be held on the 17th of March. 

I think that this is a classical case for which Section 61(4) was specifically introduced. Webmasters should be responsible for content published on their website, it is illogical to think that people could simply argue that the post was written by someone else one a  website when they actively maintain as commercial platform for people to post messages for which they have direct control over.  However, the law is unfair because it does not provide a defence for webmasters who take reasonable diligent action to remove defamatory content from their website, which you can argue was the case here as the post was allegedly removed within 24 hours – even though the moderator previously did make an active choice to allow that post on the forum.

If Ali Al Zuwaidi is found guilty he could be prisoned for a period up to a year and fined up to a 1000 Omani Rials. 

It is worth noting that the Public Prosecution issued a press release today reminding people that sending messages that offen the public order could lead to criminal sanctions. 

Will be looking forward to see how this case progresses.

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.