The number of defamation cases filed in the UAE has increased substantially over the past 12 months, and one of the correlating factors is the increase in use of social media tools.
By Rebecca Kelly and Sharon Procter, Clyde & Co.
The use of social media should not be treated differently to publication in newspapers, books or magazines when it comes to defamation. Arguably, the risk of damage is higher when social media is used, given the instantaneous and largely uncontrollable dissemination of opinions posted to social media sites.
This article examines defamation in the UAE, and outlines steps companies and individuals should follow to avoid facing criminal conviction for seemingly following the worldwide trend of contributing to social media sites.
Social media is a phenomenon sweeping the globe. Gone are the days where a letter to the newspaper's editor was the only way in which someone could publicly comment about current affairs - people now can instantaneously voice their opinions on Twitter, Facebook, LinkedIn, MySpace and other public internet social media web sites.
As the number of users of social media grows, we have seen an increase in the multitude of legal issues that arise from the public nature of the comments, including breach of privacy claims, allegations of defamation, cyber liability issues, termination of employees for misconduct, data breaches and regulatory compliance issues.
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 in the UAE increasing substantially within the region. Some recent cases involved an individual posting to Twitter unfounded accusations of corruption and injustice against a senior police officer, and another well publicised case resulted in four individuals being sentenced to imprisonment after exchanging insults on Twitter.
What you need to know about defamation
1. Defamation in the UAE is a criminal offence.
2. Defamation includes both oral and published statements, and will include any statement posted to a website which causes harm to the person the statement is about.
3. Any allegation of defamation must be filed with the police within three months from the date of publication of the "defamatory statement".
4. Once the criminal complaint is filed, the Police investigate the complaint and, if they conclude there is evidence of defamation, refer it to the Public Prosecutor for charging.
5. There is no civil action for defamation; however the complainant can file a civil claim for damages pursuant to the general principles of tort ("wrongful acts causing harm") and may be entitled to financial compensation, provided the elements can be proved.
6. It is also a crime, punishable by up to seven years' imprisonment, to insult or abuse any religion, using any means (which is wide enough to include the posting of religious comments to Twitter and Facebook).
7. The UAE courts will not grant injunctive relief preventing future publications of the "defamatory statement".
8. If found guilty, individuals can face up to two years in prison or a fine of up to AED 20,000.
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 a 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:
1. a false or defamatory statement was made;
2. which was issued to a third party (either in writing or verbally); and
3. that statement caused "harm" to the complainant.
The absence of any of these elements will undermine the merits of any such complaint.
The highest court of appeal 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 the statement is made via "printed matter" (which would include social media) or 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.
Risk for employers
Employers need to 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, the employer will no doubt be involved in the process, as they sponsor the individual to live and work in the UAE.
Whilst an investigation is on-going the police may require access to office computers. Of course, 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 remarks.
How to handle social media in the UAE
Defamation in the UAE is prosecuted by reference to the Penal Code. Rightly or wrongly, the legislation is clear, and the penalties can be severe. Individuals should ensure they understand the perils associated with posting any comments which may be construed as defamatory.
Companies should amend and update any internet usage policies to specifically refer to social media, and provide training and guidance to their employees on what is appropriate and responsible commentary for the UAE.