UAE newspapers recently carried reports of a man who has been charged with a criminal offence and jailed, pending trial, for allegedly recording a short video of a friend and his family and posting it on Instagram. The reports simply state that the man in question was on a boat trip, when he allegedly filmed a 15-second video of his friend and his family sleeping before posting it on Instagram. The individual concerned appears to have done nothing more than take a recording of his friend and his family sleeping and post the recording on a social media platform.
This case highlights important aspects of both IP law and the stringent nature of privacy rights that apply in the United Arab Emirates.
Article 43 of the UAE Copyright Law (Federal Law 7/2002) provides that:
"Anyone who takes a photograph of someone else by any means whatsoever, has no right to exhibit, publish or distribute the original or its copies without a written permission from the one been photographed unless otherwise agreed."
This provision is subject to certain exceptions – for example, in relation to events that take place in public and well-known and public figures. However, generally, the publication of a photograph without written consent from those in the photograph will contravene Article 43.
Insufficient information is publicly available to assess whether Article 43 has been contravened in this particular case. However, whenever a person takes a recording without written consent from those in the video, there will always be a risk of problems arising.
Other potentially relevant provisions include the following:
- Article 378 of the UAE Penal Code (Federal Law 3/1987), as amended, sets out a specific offence relating to the sanctity of individuals' private or family lives. This article specifically prohibits the transmission – by any means – of a photograph of a person taken in a private place without his or her consent.
- Article 378 further prohibits the publication – through any means – of pictures or comments pertaining to individuals' private or family lives, even if the information is true.
- Article 79 of the UAE Publications Law (Federal Law 15/1980) restricts the publication of any news, pictures or comments about an individual's private life if the publication is intended to disgrace the individual.
- Article 16 of the UAE Cybercrimes Law (Federal Law 2/2006) restricts the publication of any news or pictures connected with the sanctity of an individual's private or family life (even if the information is true) via information networks or information technology.
Although the effects of these provisions are all slightly different, they have a common theme in that each seeks to protect the privacy of individuals, and of families in particular. The starting point in the United Arab Emirates is that individuals and families have a right to privacy, to which there are some exceptions. This is in contrast to the position in many Western countries, where freedom of information (in the form of 'freedom to publish') is seen as a more fundamental right and the right to privacy is often seen as an exception to this general rule.
The balance between the right to privacy and the right to publish is key in the context of social media. With over 50% of the UAE population aged between 14 and 25 years old,(1) the use of social media has unsurprisingly become prevalent. This affects both individual users of social media platforms and businesses engaging in social media as part of their digital marketing strategies.
Professional photographers and media production companies already obtain waivers from the individuals who feature in their photographs and videos as a matter of routine. However, individuals and companies that do not regularly participate in the media sector may be unaware of these issues.
In an effort to educate businesses and individuals, the Telecommunication Regulatory Authority recently published white papers containing guidelines on how to use social media in accordance with the UAE legal framework. The white paper for Facebook highlights the importance of the right to privacy by stating that: "UAE law contains quite broad provisions relating to the protection of privacy and reputation so care needs to be taken when posting information about others."
The white papers also provide practical tips for users, including the following:
- obtain permission before posting photographs and videos featuring individuals;
- avoid 'tagging' people in photographs without their consent; and
- avoid posting any content that is defamatory or contrary to public morals, the principles of Islam and the social and moral welfare of the United Arab Emirates.
These are important considerations to follow, given that both individual employees and companies may be held criminally liable for unlawful content posted on corporate social media accounts.
As social media becomes an integral part of businesses' marketing strategies, steps should be taken to ensure that the employees that are 'speaking' on behalf of the business on social media are adequately trained on the potential risks. Social media policies and guidelines that are tailored to the Middle East region should also be developed (if they have not already been implemented) in order to mitigate the risks of unlawful content being posted on corporate social media accounts, which could result in criminal liability and reputational damage.
For further information on this topic please contact Rob Deans or Harriet Balloch at Clyde & Co by telephone (+971 4384 4000), fax (+971 4384 4004) or email (firstname.lastname@example.org email@example.com). The Clyde & Co website can be accessed at www.clydeco.com.