Traditional stakeholder in the UAE media landscape have long taken local laws regarding privacy and defamation into consideration when formulating editorial policy. However, especially as social media influencers and user-generated content play an increasingly prominent role in the entertainment and communication sectors, it is worth examining where to find the correct balance between freedom of expression (a constitutional right in the UAE) and individuals’ rights to protect their privacy and reputation.
The right to privacy is protected under several UAE statutes. In line with the EU’s GDPR, the UAE Data Protection Act enables residents to control how their personal data is processed, placing an emphasis on informed consent. This requires businesses to ensure methods of storing and processing participants’ data meets prevailing standards.
In addition, intellectual property law (with limited exception for public events) also requires permission from photography subjects. This requires businesses to ensure they obtain formal, written consent so that their content is not subject to platforms’ take-down procedures due to intellectual property infringement.
More notable, and in contrast with many common law jurisdictions, is the application of criminal penalties for infringement of privacy. The UAE Penal Code, updated in 2021, prescribes criminal penalties to ‘any person who interferes with the right to privacy and family life’, a crime which explicitly includes ‘recording, or transmitting, through a device’ and ‘taking or transmitting… pictures of any person in private.’ While the primary objective of the legislation is to safeguard the UAE’s population from asocial, intrusive behaviour, there is an obvious impact on the media industry; the UAE does not tolerate for paparazzi culture, adding to its appeal for those with a prominent public profile.
It is not only the act of taking photographs and recordings that is criminalised; distribution of the resulting content is similarly forbidden, including publishing ‘by any ways of publicity, news, pictures, or comments in relation to the secrets of personal or family life of the individuals, even if true’. A reasonable interpretation of ‘secrets’ is that akin to ‘personal matters’, subject-matter that is protected by the right to privacy, as opposed to a higher threshold of information that is highly sensitive or subject to obligations of confidentiality.
The Penal Code is reinforced by the 2021 Federal Law Concerning the Fight Against Rumours and Cybercrime (aka the Cybercrime Law), a statute that reflects the digital-first nature of a raft of serious criminal activity. The Cybercrime Law prohibits using electronic equipment to eavesdrop, recording without consent, and ‘spreading news, electronic images, photographs, footages, comments, data or information, even if true and correct, to harm such person’. It would be difficult to argue that infringing a person’s right to privacy does not harm them, meaning that virtually any content depicting an individual without consent could be deemed a criminal offence.
Even with consent, content creators need to be careful how their subject is depicted.
A criminal offence, defamation is defined in the Penal Code as imputing a fact that renders the individual ‘subject to punishment or contempt’, which is understood to cover a wide range of disparaging references.
In stark contrast to major content production markets such the UK and US, under UAE law there is no pervasive defence of truth or justification, meaning that sound fact-checking and evidence gathering are not effective ways to manage risk.
Another factor to be considered is that defamation, being a criminal matter, can be reported to the police rather than requiring enforcement via civil courts, meaning that legal costs, a barrier to people of modest means pursuing defamation cases in many jurisdictions, become irrelevant.
It’s not only industry stakeholders that need to be observant of privacy rights. According to respected sources such as The National, there have been several cases of prosecution and deportation involving sharing of images depicting cars – and, crucially, number plates – on social media platforms in a critical manner. It is unclear whether the grounds for prosecution were breach of privacy, defamation, or a combination of charges. In some cases, the number plate was reported to have been blurred, indicating that although anonymising techniques may have a mitigating effect in the context of permission, they may not be entirely reliable where relevant authorities deem harm to have been inflicted.
In light of these issues, the content industry finds itself striking a delicate balance. Best practice is for producers to secure informed consent for all content creation and use, by signed agreement (including parental consent in the case of underage participants). Ideally, distribution platforms should verify that such consent has been obtained, or at least be confident that they can enforce robust warranties and indemnities. Taking such measures will ensure that the industry continues to thrive whilst remaining respectful of local law and UAE residents’ rights.
By Charlotte Sutcliffe, Associate, Technology, Media & Entertainment and Cameron Crawford, partner and head of media & entertainment at Cedar White Bradley.
