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The impact of defamation and privacy on social media

We are frequently asked the question: are we allowed to publish, post, republish any information, content, picture, video or data on COVID-19 when using our private social media accounts? After all, it is in the public interest and everyone is doing it!

In an era where often more questions arise than answers, the public is eager to read, share and explore everyone’s views on a particular topic. Whether you are journalists or reporters providing professional coverage, business owners responsible for your employees’ conduct, family members responsible for your children or dependants’ actions, we all need some guidance and practical answers, in order to be aware of the legal implications of how we use our social media.

Whilst naturally we are all expressing and discussing our thoughts on the impact of COVID-19 (and given the Governmental advice of self-isolation, this communication is largely via the internet), it is important to be aware of the potential legal implications that the dissemination of information and expressions of opinion or fact could have in the UAE.

Within the contents of this short article, we will outline the key points which individuals should be aware of before submitting and/or disseminating information, pictures, posts or any audio, audio-visual or written material regarding COVID-19 into the public domain. The points covered by this article are applicable to individuals, , patients, advice, corporations or any other form of information. The two major risks can be broadly summarised as an i) Invasion of Privacy and ii) Defamation.

Privacy. The right to a private and dignified family life is considered inherent in the UAE and is appropriately safeguarded by numerous applicable laws and regulations. The disclosure of information or secrets relating to someone’s private or family’s life will attract liability under the Penal Code, the Cyber Crimes Law as well as laws related to media and publications in UAE, if no prior consent is obtained from the individual. This can include an image, photo, short videos or any materials that expose individual(s) to the public without their consent, even for the purpose of public awareness.

To put this into the context of COVID-19, to expose an individual as exhibiting symptoms or as having the virus is likely to be interpreted as an invasion of an individual’s right to a private life. Furthermore, to take a picture of another person(s) in a public place and ‘disseminate it’ by publishing it online could also be interpreted as an invasion of privacy.

The UAE Criminal Court of Cassation issued a binding court judgement in relation to privacy laws in 2016, where it affirmed the imposition of serious sanctions against all entities involved in publishing content that violates the privacy of individuals. The individuals, in this case, were walking in public areas (commercial malls) yet, they were filmed without their consent and this subsequently raised a claim for the invasion of privacy. The sanctions imposed by the Court of Cassation as a result of this invasion of a right to a private life included fines and deportation from UAE territory.

The fundamental point is that patients (including their family members), children, names, images, medical situations or related data, can all be classified as private information, which is exclusive owned by the individual concerned The disclosure of this information, in any form, should be carefully reviewed and assessed, in order to mitigate any potential risk. It is important that Employers or Individuals with dependants, raise awareness on the implications of reporting on social media platforms in respect of the applicable laws to ensure no violation, even if unintentional, occurs. Ignorance of the law or lack of intention to violate another’s right to privacy is not an excuse. It should be noted that simply re-sharing what someone else has shared or published will not exempt an individual or entity from liability.

We have observed a high level of professionalism and adherence with the applicable laws and the third parties rights of media service providers, including TV channels, radio stations, online newspapers and other mediums. This is apparent from all the reports and audiovisual content that we are receiving in relation to COVID-19. We have also witnessed reliable content on the topic that provides sufficient information to public and corroborates with official sources.

Defamation. Defamatory or libellous posts on social media could result in defamation claims under the applicable laws in the UAE. Whilst the creation and dissemination of parodic posts and content is a common occurrence in the UK and Europe, it is important to be aware that parody is not an available defense under UAE Law. Instead, it is more likely that a parody may be seen as an attempt to humiliate an individual or an entity and to harm their reputation, no matter how ridiculous the parody is.

More recently, an exception to this rule was passed in the UAE in DIFC Intellectual Property Law number 4 of 2019, in which it is considered that a registered Trademark, or a well-known Trademark, is not infringed in the DIFC if it is used in news reporting, news commentary or parody. However, this exception is specifically limited to DIFC and in relation to trademarks. This shows a willingness for parodic content to be recognised in the future, but for now, the public should be aware that parodic content, could be pursued by the concerned individuals and/or entities in UAE under the applicable defamation laws. To put this into context, any posts relating to patients, medical staff members, law enforcement agencies or the public reacting to incidents of public interest can be subject to legal liability. Defamation criminal liability is pursuable within a strict time bar from publishing defamatory content. However, civil liability and invasion of privacy criminal claims can be longer than defamation offenses.

It is worth reminding everyone that in accordance with articles 372 and 373 of UAE Federal Law No. 3 of 1987 in UAE (as amended), a defamatory statement is one that exposes a person to public hatred or contempt, even if the statement is true and correct. This means that a person is potentially exposed to a claim for defamation by publishing or disseminating any negative news about an individual or an entity. If the defamatory statement is made against a public officer or governmental entity, the imposed sanction could be significantly worse.

Based on the above, an individual, before communicating an opinion, posting or sharing any videos in relation to COVID-19, by whatever method of communication, should consider:

  1. Could this statement be interpreted as defamatory or an invasion of privacy for others? (i.e. does this statement suggest anything negative about an individual or entity in particular? Does it reveal any information or post any material regarding someone that can be classified as private content, a private location and/or unsuitable for public display); and
  2. Could this statement, post or content cause harm? (particularly to reputation and honour to an individual or entity, on a national and international basis).

We should all be aware that the protection of privacy, for the data of patients, defamation, cyber-crimes and all other related legal provisions in UAE are going to be likely reviewed and subject to enforcement proceedings should any violations be revealed. The priority now is for public safety but authorities and concerned individuals will be monitoring and documenting posted content that may be revisited in the future to explore any legal liabilities.

On a final note, social media platforms are extremely beneficial to the general public as they enable the transmission of awareness, encourage the freedom of speech and facilitate communication on an international basis, at a time where countries are shutting their borders and encouraging people to isolate. For example, the level of awareness that people gained on COVID-19 in such a short period is unprecedented. However, users should be aware that social media platforms are not private and the misuse of such platforms by sharing any content, statement or image that they come across, is subject to appropriate sanctions. Freedom of speech is granted and protected so long as it is in compliance with local regulations and public orders.

Dubai Courts Postpone all Judicial Hearings

Dubai courts in its Resolution No. (30) of 2020 issued on March 17, 2020 concerning the adjournment of judicial hearings and working remotely (the “Resolution”) decided on postponing all judicial hearings for the Court of Cassation, the Court of Appeal, and the First Instance Courts, and suspending testimonies and documentation of personal status from Sunday 22/03/2020 until Thursday 16/04/2020.

Some exceptions were made in the Resolution to the consideration of cases of temporary and urgent matters, online requests, criminal cases and appeals that include detainees and inmates.

The Resolution called on all court judges to file judgements at their specified sessions during the postponement period.

In a move to maintain the continuity of work, the Resolution activates a trial remote working system with a phased approach. In the first week, a maximum of 30% of the workforce can work from home. For the second week and thereafter, the management of the courts will continually assess how things are progressing and will allow working from home to apply up to a maximum percentage (not specified) of staff, which is higher than 30%. The Resolution also notes that it is of paramount importance during the remote working that the privacy and confidentiality of cases is in no way compromised.

The Resolution also specifies that employees from different disciplines and job grades are included in the trial with the possibility that employees exchange system implementation periodically to ensure business continuity in organisational units. And that work in various sectors is normal and that no services are stopped and to maintain the commitment of the employees to the standards and controls stipulated in the information security system for the Emirate of Dubai and approved by the Dubai Electronic Security Center, especially the sub-officer, remote entry security.

The Resolution also gives priority in applying the system to pregnant women, the elderly, people of determination and workers who suffer from chronic diseases related to the respiratory system or those that cause immune deficiency.

The Resolution called on all attendees not to visit the courts in person for all claims and requests services that can be submitted and followed up through the electronic and smart systems of courts and on all concerned authorities to follow up the implementation and take the necessary measures as of its date.

Can employers terminate employees due to COVID-19?

With the recent outbreak of the COVID-19 Virus, the hardest hit are establishments within the hospitality, F&B and retail industry, with many restaurants, gyms and many other businesses being forced to shut their doors temporarily or at least downscale their production and/or services drastically.

The greatest expense for most businesses is the payment of employee salaries. In circumstances where businesses are sometimes not operating and employees are not working as a result of the COVID-19 outbreak and the resulting measures adopted by the UAE government, certain queries arise.

BSA provides answers to these queries in an effort to allow employers/businesses to curb their losses and employees to know their rights.

Employment provisions relating to the COVID-19 outbreak

At the outset, it is important to note that, to date, no special provisions/exceptions have been implemented to govern the relations between (1) the establishments that have been affected by the mandatory closures relating to the COVID-19 outbreak (or any establishment facing the direct/indirect repercussions of the pandemic); and (2) their employees.

BSA has reached out to the MOHRE and they have confirmed that their stance thus far is that the COVID-19 outbreak has not been declared a force majeure event and in the absence of special provisions relating to the exceptional measures taken as a result of the COVID-19 outbreak, the status quo remains and both employers and employees will be bound by their rights and obligations as outlined in Federal Law no. 8 of 1980 (as amended) (the ‘Labour Law’) and their relevant employment agreements.

In light of this unprecedented global pandemic, it is preferable for employers and employees to enter into discussions, negotiate and agree upon terms that are acceptable to all parties involved.

Can an employer terminate an employee under the current circumstances resulting from the COVID-19 pandemic?

Yes, however, such employer will be at risk of facing arbitrary dismissal claims.

In the absence of specific provisions adopted as a result of the COVID-19 outbreak, employers can terminate their employees, however, such terminations will be governed by the provisions of the Labour Law and the relevant employment contract(s). Any such employers will likely be required to settle the employees’ dues (including but not limited to payment in lieu of notice) and will be at risk of facing arbitrary dismissal claims. In circumstances where the COVID-19 has not been declared a force majeure event, employers will need to assess this risk in light of the Labour Law.

The same rules will apply as regards limited term employment contracts given that the Covid-19 outbreak has not yet been deemed a legitimate justification for termination. As such, if an employer terminates an employee as a result of the COVID-19 pandemic, the termination will be considered to be without cause and the employer may be held liable for compensating the employee.

Can an employer compel its employees to take unpaid leave?

No.

In light of the COVID-19 outbreak and resulting mandatory closures, many employers are likely to attempt to avoid payment of their employees’ salaries and consider their absence as ‘unpaid leave’.

Any such attempt will be considered unlawful under the Labour Law as employers are not permitted to ‘freeze’ the employment of their personnel for a set period of time.

Unless the parties agree that the employee will be taking an unpaid leave, an employer’s instruction to enforce unpaid leave on his employees will constitute a breach of the Labour Law (as outlined above) and the contract given that the employer will be failing to pay the employee’s salary (in accordance with the terms of the employment contract).

Can an employer compel its employees to take their annual (paid) leave during the COVID-19 outbreak?

The general principles embodied in Article 76 of the Labour Law state that the employer may determine the date of the commencement of the annual leave, and may divide it if necessary, to two or more periods. This right has been given to employers since they are the responsible persons who are aware of the volume of work being undertaken by the company, and also to determine the priority as to when the work must be executed. This right is given with a view to prioritise continuity of work. In view of this principle, the converse is also applicable during this period of slowdown caused by the outbreak of COVID-19, where there is a discontinuity of work. Therefore, given the above information, the employer can determine the date of commencement of an employee’s annual leave during the COVID-19 outbreak.

Can an employer impose a salary reduction?

No.

Should an employer perform any deduction of salaries outside the scope of Article 60 and the employment contract, an employee can seek the recovery of any deducted amount(s) before the competent labour courts.

In a context of cooperation during these unparalleled circumstances, parties may wish to agree upon a structure suitable for both the business, which is likely to be facing financial difficulties arising out of the COVID-19 outbreak, and its employees, who need to be paid their salaries, in an effort to avoid mass terminations as a result of the pandemic.

Is there a moratorium on salary payments?

The MOHRE has confirmed that at this point, the status quo remains, notwithstanding the COVID-19 outbreak. As such, there is no moratorium on the payment of salaries and employers must continue with making salary payments unless the employment contract provides otherwise.

The peculiarity of the situation will undeniably need to be considered by labour courts when hearing employment cases arising out of the COVID-19 outbreak.

Taking affirmative steps now is especially important as companies currently can foresee and attempt to mitigate any potential operational impacts in advance of the outbreak spreading to any new locality. Ideally, businesses will be able to plan accordingly to avoid any disruptions in their operations if the virus continues to spread.

We urge individuals and businesses to seek legal advice as to their existing and future contracts with the above information in mind.

Are you covered for Coronavirus-related business interruptions?

The recent emergence and rapid spread of the COVID-19 novel coronavirus has resulted in unprecedented disruptions to virtually all aspects of global and locally based commerce, as well as almost everyone’s normal routines. While we collectively and individually should now focus on protecting our personal, family, and greater community health and safety in this emergent situation, it is also important for businesses to be aware that the extreme stresses that the inevitable economic disruption will, and in many cases has already caused, may be mitigated somewhat by reliance on contractual force majeure clauses set forth in contractual agreements, as well as the availability of business interruption provisions contained in certain commercial insurance policies.

A contractual force majeure clause generally permits a party to a contract to avoid its obligations to perform, where certain external events prevent the party from being able to deliver the product or service as agreed. These are usually unforeseen events, such as strikes, natural disasters, and other large-scale societal disruptions, which by their overwhelming and unusual nature, disrupt a party from performing due to the circumstances imposed upon them by the uncontrollable force majeure event. Many contracts set forth with specificity what events may be deemed to trigger force majeure relief. Some may even include epidemics as a force majeure event. Any contract which does not state the same with such particularity will need to be reviewed to determine whether the COVID-19 virus may be deemed to provide the parties with a contractual right to declare force majeure and thus be relieved of their duty of compliance.

Additionally, UAE Civil Code Article 273 provides a separate basis under which force majeure may apply, in circumstances where performance is impossible, and may lead to rescission of some or all of the contract.

As such, all commercial entities should review their contracts to determine if they may obtain relief accordingly where they are unable to meet their obligations. Conversely, entities must be aware that their contractual counterparties may seek to invoke force majeure protections to avoid their duties, and should be prepared to resist the same should the circumstances and/or contractual provision not support invocation of the same. It is also important to evaluate whether the force majeure event has truly prevented a party from performing, and is not being used as an excuse to avoid complying with duties that are merely commercially not to that parties’ benefit.

An insurance policy that provides “business interruption” coverage may also provide relief from economic distress by offering indemnification for business losses arising from the peril insured against. The business interruption provisions must be carefully reviewed to determine if the event, in this case the COVID-19 disruption, is covered. There are many different forms of business interruption coverage, some being much more restrictive than others. For example, a typical commercial property insurance policy may provide business interruption cover, but requires that physical damage or loss first be sustained to the relevant business property, before the business interruption coverage will be triggered. Whether the circumstances of COVID-19 will be judicially construed as creating such physical loss will be hotly litigated over the coming years, although have been previously determined in limited cases in some jurisdictions, depending on specific fact patterns.

Some commercial policies contain more specified forms of business interruption coverage; however these may be subject to exclusions and other limitations as to scope and applicability. As with any insurance matter, the specific circumstances and policy language will control, and a careful review of both must be undertaken to see if these losses may be mitigated through the coverage.

Update Regarding Foreign Direct Investment in the UAE

Following from our recent newsflash regarding foreign ownership of businesses in the UAE, Sheikh Mohammed bin Rashid Al Maktoum, UAE Prime Minister and Ruler of Dubai, has now made a statement approving the sectors and economic activities which are eligible for up to 100% foreign ownership. These include 122 economic activities covering industrial, agricultural, and services sectors.

This foreign ownership law is part of a multifaceted strategy by the UAE to increase foreign investment in the region.

If you would like to find out more information, please visit: https://bsabh.com/

About BSA Ahmad Bin Hezeem & Associates LLP

BSA is a law firm founded in Dubai with the mission of delivering top-tier legal services based on our comprehensive knowledge of local, national, and international law. Since our inception in 2001, we have rapidly expanded to a leading full-service law firm, with offices throughout the Middle East and France. Our lawyers are internationally educated, bi-lingual in languages such as English, Arabic, and French, and dual-qualified in both regional and international jurisdictions, having rights of audience in every country within which we operate. BSA is a law firm that truly reflects the energy and ambition of the Middle East.

New mandated health insurance law in Oman

The Capital Markets Authority (CMA) in Oman, the financial regulator, has released the new mandated medical insurance Law, Unified Health Insurance Policy and the Health Insurance Rules under Decision No.78/2019 through Resolution No 34/2019 – For the Issue of Unified Healthcare Insurance Policy Form.

The Health insurance market embraces itself for another mandated health insurance law in the Sultanate of Oman. Residents in Oman will be required to have in place a minimum level of medical insurance coverage with minimum benefits pursuant to the prescribed provisions of Resolution No. 34 of 2019 For the Issue of Unified Healthcare Insurance Policy Form, which was issued by the CMA as at 24 March 2019 and is now in force (“the Law”).

The application of the Law is relevant to the employer market and the beneficiaries arising from those relationships including employer, employee and dependents.

The Law applies and has adopted a “Basic Benefits” and “Optional Benefits” coverage, standard form “Policy Schedule” for parties’ signature and a standard “Insurance Application” for pre-contractual disclosure requirements.

Chapter One of the Law prescribes a “Unified Health Insurance Policy” (“the Policy”). Insured is defined as a “natural or unnatural person responsible to pay the insurance premium” and Beneficiary defined as “employee or employee dependent to whom the Insurer performs the duties assigned by the provisions of this Policy”. Dependents have been defined to include employee’s spouse, residing in Oman, children of the employee who are under 21 years age and any other person who resides in Oman and is dependent on the employee. This may include the employee’s parents/other relatives based in Oman, house help or maid who is sponsored by the employee.

The insurer has been defined as an “Insurance company licensed to practice health insurance business in the Sultanate” thereby clarifying that the Policy can’t be underwritten on a non-admitted basis by foreign insurers, which provides welcome clarity to the market.

The Policy must be completed and submitted by the Insured as a legal obligation. The Law, as currently prescribed, addresses application, coverage, mandatory minimum benefits and claims management.

Chapter Two is of interest, as the preamble defines a wide interpretation of what shall constitute the contract of health insurance, which includes all basic information, details and common practices in healthcare insurance contracts, etc. Insurers will need to take care of their pre-contractual documents, as these could for all intents and purposes unintentionally constitute the contract of insurance. Chapter Two further sets out the general terms and conditions, placing obligations on the insured to disclose correct and accurate information. The Code of Conduct for Insurance Business issued by the CMA requires insurers to inform insureds of their duty to disclose relevant information. Omani Law, therefore, applies the duty of utmost good faith (uberrimae fidei). Chapter Two also prescribes the excluded conditions from the coverage under the Policy.

The overall combined limit under the Policy is OR 4,500 in terms of financial spend, so surprisingly much lower than the UAE and KSA mandated schemes. Inpatient treatment limits for the policy year is capped at OMR 3,000 and includes usual basic cover, i.e. admission in hospital or daycare, cost of treatment, room cost, consultant fees, diagnosis and test, medicine, ambulance cost and companion cost, also including the cost for pre-existing and chronic conditions for in-patient treatment, while the latter is excluded for out-patient treatment.

Hospital admission under the Policy must be in a joint room and is limited to 30 days at each instance, whereas the ambulance cover is limited at OR 100 each trip. Outpatient treatment is limited to OR 500 for each policy year and the cover is limited to consultancy fees, diagnosis and tests, pharmacy fees and lab fees. Additionally, the Policy includes the cost of repatriating a deceased beneficiary to their country of origin, for which a limit of OR 1000 has been allocated.

Any departure from the basic benefits is not permitted unless agreed as a Schedule to the Policy and signed by both parties and should additional benefits be opted for by the insured, they must be set out in the Optional Benefit Schedule format provided in Appendix 3 to the Law.

The Law also sets out specific obligations on how it will be administered, some of which we set out below:

  • All Health Insurance Claim Management systems of the Providers must be compatible with the electronic claims system applicable in Oman;
  • Insurers will bear the cost of medical consultations only if there is prior referral from a licensed physician;
  • Providers must seek prior approval for all inpatient treatment and for all outpatient treatment where costs exceed OR 100, however in emergency cases treatment must start immediately;
  • For approvals, providers must upload all details in the online application and the insurer must respond within 30 minutes with a decision, failing which it will be deemed as approved;
  • Similarly, a Provider is also required to respond to any inquiries or observation by Insurer within 30 minutes of the inquiry/observation being made;
  • For all claims made outside the network, the Insured must make the claim within 120 days of the claim and insurer must compensate beneficiary within a period of 15 days of receiving documents in support of a claim; and
  • Whenever a claim is rejected by Insurer, the Insurer must provide to the Beneficiary, within 10 days of rejection, a written statement highlighting the reasons for which the claim is rejected.

Appendix 4 to the Law sets out the mandatory basic minimum coverage under the Policy, which provides two options to the Insured based on which premium will be determined by the Insurer. While both options have the same coverage terms and limits, the first option provides for deductibles on certain categories and the second option does not require deductibles to be paid by the beneficiary. The deductibles on the first option are limited to outpatient treatment only and are set at 10% for medicine, subject to the limit of OR 5 per visit and 15% for consultancy fees, diagnosis and lab fee for providers within network (with a cap of OR 20 per visit) and at 30% for Providers outside the network (with no cap!).

While the Middle East insurance market is to a large extent geared up for the new mandated health insurance requirements in Oman based on previous experiences with the KSA and UAE markets, they should no doubt see the opportunities for top over coverage in Oman given that the minimum coverage is very basic in nature (i.e. no maternity coverage offered as a minimum benefit). Of interest, Oman has not applied licensing for third party claims administrators at present, which also presents opportunities in this market.

We anticipate many questions and clarifications around the Law both from insurers, reinsurers, intermediaries, third party administrators, clinical providers, and others. BSA is well placed to provide support in this area with its expertise in health insurance laws and regulations and its Muscat law office.