Overview of the New UAE Federal Penal Code
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It is more important than ever for business and individuals to know the law on defamation and cybercrime and take steps to avoid falling foul of it, and similarly, to know their rights if they are the victim of defamation. In recent years, we have seen an increase in defamation and cybercrime complaints, which has been accelerated by the increasing use of digital communication during the COVID-19 pandemic.
On 2 January 2022, important changes to UAE law concerning defamation and cybercrimes took effect, namely:
Under UAE law, publishing defamatory comments on social media is a criminal offence no different to publication in newspapers, books and magazines, but the penalties can be even more severe, and the easily-accessible and informal nature of social media can catch writers off guard. Arguably, the risk of damage via social media is even higher than traditional ‘print media’, given the immediate and largely uncontrollable dissemination of opinions posted to social media platforms, which can be re-posted and ‘go viral’ in minutes to an audience far beyond that which the original writer may have intended. This article examines defamation in the UAE, and outlines steps companies and individuals should follow to avoid facing criminal conviction in the UAE.
In the UAE, any commentary posted (anonymously or not) may lead to criminal charges for defamation. We have seen first-hand the number of defamation and cybercrime cases against individuals increasing substantially within the region in recent years, many with a social media context.
Some recent well-publicised cases involved a woman convicted of insulting her uncle via WhatsApp, and another case resulted in four individuals being sentenced to imprisonment after exchanging insults on Twitter.
There are two main defamation offences set out in Articles 425 and 426 of the new Penal Code. Article 425 prohibits publicly alleging a fact against someone which exposes the victim to punishment or contempt and Article 426 deals with insulting someone publicly in a way that may injure the victim’s honour or dignity.
The highest court in Dubai, the Court of Cassation, has held that a defamatory statement is likely to make the defamed person subject to "punishment" or "humiliation" amongst their community. In a more recent decision, the Court held that mere criticism may be regarded as defamatory if it exceeds the "normal limits" or affects the honour of a defamed individual.
If found guilty of an offence under the Penal Code, individuals can face a fine of up to AED 20,000 or a prison sentence of up to two years for an offence under Article 425 or one year under Article 426.
If the statement is made against a public officer this will be considered an aggravating circumstance, which may increase the severity of the punishment. However, the new Penal Code also introduced a new defence if the incident attributed to a public officer is proven to be true and related to their office.
Statements which insult a person's honour or the reputation of their family will also be subject to penalties at the more severe end of the scale.
The new Penal Code also introduced a separate crime, carrying its own penalty, to interfere with the right to privacy and family life by recording or transmitting private conversations or taking or transmitting pictures of a person in private, in each case without consent. This offence is mirrored in the new Cybercrimes Law, which also makes it an offence to spread news, images, footage and information, even if true and correct, if done with the intent to harm a person. Conviction can carry a hefty fine of AED 250,000 – AED 500,000 and/or a prison sentence of at least one year upon conviction.
There is no civil action for defamation in UAE law; however the complainant can file a civil claim for damages in tort i.e. "wrongful acts causing harm" and may be entitled to compensation, provided the elements of the case can be proved.
In addition, defamatory remarks made on social media or by any other digital means (including WhatsApp, TikTok, Twitter, Instagram, Facebook, websites, SMS and email) may be an offence under the new Cybercrimes Law. Under Article 43 of the Cybercrimes Law it is an offence to insult others or attribute to them an incident that may make them subject to punishment or contempt by others using a computer network or any information technology means, carrying a penalty of a prison sentence and/or a fine of AED 250,000 – AED 500,000.
The new Cybercrimes Law also introduced a new offence for spreading rumours or fake news via digital means if this provokes public opinion against a state authority or if committed at a sensitive time (i.e. during an epidemic, emergency or disaster).
It remains an offence to record or photograph someone without their consent, or copying and distributing the same. This is a crime even if the recording or photograph is not sent to anyone else, and regardless of the context. The offence carries a potential penalty of a jail sentence or a fine. There is a potential defence if the recording or photograph was taken in order to report a crime to the police.
It is also prohibited under the Cybercrimes Law for any owner or operator of a website or information network to facilitate the commission of a legally punishable crime. This means that internet service providers and owners and administrators of websites and social media platforms that store or provide illegal content may commit a crime, punishable by a prison sentence and/or a fine, particularly if they are aware of the illegal content. This means website and group admins can be held liable for inappropriate posts by members and should put in place measures to mitigate this risk.
In the event an employee has been charged with a criminal complaint, even if the issue was not in the course of their employment and unconnected to the employer's name and brand, the employer will no doubt be involved in the process, as they sponsor the individual to live and work in the UAE.
While an investigation is on-going the Police may require access to office computers and mobile phones. The Cybercrimes Law also provides for the seizure of any devices used to commit cybercrime, as well as deletion of information and permanent or temporary closure of the offending website at the Court's discretion.
Where the opinions of the employee are given on behalf (or seen to represent) those of the employer then the criminal complaint could be made against the employee's manager as well as the employee posting the defamatory material.