Protection des données et de la vie privée
In recent years, a number of high profile defamation cases involving social media have made headlines in the UAE. Under UAE law, publishing defamatory comments on social media is 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 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 372 and 373 of UAE Federal Law No. 3 of 1987 (as amended) (the "Penal Code"). Article 372 deals with publicity which exposes the victim to public hatred or contempt and Article 373 deals with a false accusation that dishonours or discredits the victim in the public eye.
To succeed with a criminal complaint for defamation, the complainant must prove:
The absence of any of these elements will undermine the merits of a complaint.
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 up to two years in prison or a fine of up to AED 20,000.
If the statement is made against a public officer this will be considered an aggravating circumstance, which may increase the severity of the punishment.
Statements which insult a person's honour or family will also be subject to penalties at the more severe end of the scale. It is also a separate crime, carrying its own penalty, to insult, abuse or show contempt for any religion using any means.
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 can be proved.
In addition, defamatory remarks made on social media or by any other electronic means (including WhatsApp, websites, SMS and email) may be an offence under Federal Law No. 5 of 2012 (the "Cyber Crime Law"). Under Article 20 of the Cyber Crime Law it is an offence to insult others or have attributed to them an incident that may make them subject to punishment or contempt by others using a computer network or any information technology means.
It is also prohibited under Article 39 of the Cyber Crime law for any owner or operator of a website or information network to store or provide illegal content, if they are aware of the illegal content. This means website and group admins can also be held liable for inappropriate posts by members.
If found guilty of an offence under Article 20, the punishment includes imprisonment and a fine between AED 25,000 and AED 500,000, as well as potential deportation if the offender is a foreigner.
Similar to defamation offences under the Penal Code, if the statement is made against a public officer this will be considered an aggravating circumstance, which may increase the severity of the punishment.
Employers should ensure that they explain the risks to their employees when they engage in social media.
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. The Cyber Crime Law also provides for the seizure of any devices used to commit cyber crime, 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.