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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.

The New DIFC Intellectual Property Law

The Prime Minister of UAE His Royal Highness Shaikh Mohamed Bin Rashid Al-Maktoum issued law number 4/2019 for Dubai International Financial Center (DIFC) on November 21, 2019, “DIFC IP LAW”.

With the help of this new law, we believe the UAE, and Dubai in particular, has advanced one step more in progressing its regional position as a hub host for e-commerce, e-governance services, knowledge-based economy and strengthen innovation environment. Dubai has been the center point in the Middle East to launch many entities that has later becomes international reputation in e-commerce, mobile applications and online web services providers. The very good examples of “Souq.com” marketplace, acquired by Amazon, and “Maktoob” acquired by Yahoo Inc, “Careem” in process of acquisition by Uber, were all established in the UAE. Because of this unique position, Dubai was the ideal place to hold many routine IP events and meetings for international organisations to promote, discuss and advocate for protection of IP rights and discuss key challenges in this domain within our region.

Dubai International Financial Center (DIFC), or unofficially known as the Wall street of Middle East, was established to be the first district that follows common law system in a civil law country. This area continues to be among the most favorable locations to set up entities of foreign investments, international firms, financial institutes and other western companies that seek presence in the Middle East. As Intellectual property (IP) is one of the key areas of law that is evolving rapidly in UAE, both government and private sectors have begun, in the last few years, paying more attention to applicable laws and regulations that assist them to create, protect, own and enforce their exclusivity on intangible assets.

The majority of IP rights in UAE are regulated by Federal laws that were enacted between 1992 and 2002 and were followed by several amendments. To enhance the protection of IP rights within DIFC and keep the speed with international standards of IP laws, the new DIFC IP law introduces clarity on ambiguous or keys issues that are deregulated in the UAE. In fact, calls were made by professional experts in IP during the past few years to pass a special, developed and enhanced IP piece of regulation in the DIFC that can set out the best practice rules, provide guidance and advanced protection and clarity on IP related inquiries. Hence, this new law does not come as a surprise to those who have been following the advancement of local regulations in the UAE, rather, it reads as a promising step to expand in the protection of IP rights in the region and sets out a good precedent for legislators to regulate, or amend existing laws, on a wider level.

The new DIFC IP law introduces a new era in IP rights protection within our region. It establishes a well-regarded reference to head for a more internationally satisfying IP legal landscape. Whilst we should wait and see the enforcement of this new law before local courts, we anticipate key interesting provisions to be introduced to regulate classical IP rights models, i.e. patents, trade secrets, industrial designs, trademarks, copyrights and trade names. For instance, this law should read in harmony with existing federal laws that are applicable in the UAE and does not determine any new and/or alternative registration systems. The law does not establish or introduce any registration systems for IP rights within DIFC nor will replace or overlap with existing registrations acquired from relevant offices at the UAE Ministry of Economy. On the other hand, it brings an explicit recognition of some new doctrines and principles in the IP field, such as fair use of trademarks and patents, work for hire, parody, classification of economic rights associated with copyrights, factors and advanced measures to determine “well known” trademarks, trade secrets violations and reverse engineering.

Collection Societies is a very interesting topic to see regulated for the first time in an internal law and the new DIFC IP law provides an excellent opportunity for Collection Societies entities to plan and establish its presence in the DIFC. This will help to start the process of enforcement of those delegated copyrights to Collection Societies, bringing this area to a real presence within the UAE. To those who followed this topic, it has been subject to serious debates, discussions and advocacy efforts in the past 10 years, without any material progress. In light of this new law, the Collection Societies are invited to expand their presence and come to the DIFC to use this new legislative platform for its activities in the region. Article 41 of the new law sets out some clarity on performance of Collection Societies and restrictions of some activities, such as applying discriminatory licensing or exploitation to copyrighted work of art. Nevertheless, Collection Societies should know that the DIFC court orders are enforceable within the UAE mainland and, in theory, can be expanded to reach other GCC and/or Arab states, based on applicable treaties and conventions.

Sanctions and penalties in this law are also an important chapter, noting promising ranges of fines that are to be imposed, which seem to be more effective in assisting enforcement actions. With introducing a new Commissioner of IP role, we believe this mechanism will be an indication to see how this new DIFC IP law will be enforced.

A more detailed review for this new law will be released by IP practitioners which will help to add further clarity and explanation to stakeholders, i.e. Intellectual Property rights owners and counsels.

UAE Ministry of Economy update fees for Trademark Enforcement

To ensure efficiency and streamlining with international best practice, namely in trademark prosecution and the enforcement of registered rights, the UAE Ministry of Economy has issued an administrative order to decrease and waive some of the core official fees associated with their trademark registration and enforcement services.

Following an increase to such fees in 2015, the UAE Trademark Office was urged by trademark owners to consider a reform of this decision. Whilst the number of filed and examined marks has somewhat declined since 2015, this decrease can in part be attributed to the reduction of illegitimate marks filed in bad faith and those filed with intention to benefit from pre-existing rights.

The UAE Ministry of Economy has decreased and waived more than 100 nominal fees across different departments and sections, such as commercial agencies, the Trademark Office and Copyright Office. Notably, the Trademark Office has reduced its registration fees by 33%. This follows the introduction of steps to ensure the complete protection of trademark rights with the full integration of an online system for all trademark prosecution services and e-filings. This full electronic integration, operational since January 2019, has reduced the volume of administrative work for officials and has enhanced examination efficiency. On average, it now takes less than 6 months to complete the entire process of filing, examination, publication and registration of new trademarks. In the past, this time frame was considerably longer, taking approximately 12 months or more, to complete the process.

Prior to the reduction in fees for trademark registration, the applicable fees in the UAE were considered among the highest, if not the highest, in the world. As a result, officials received substantial requests to reconsider such rates and bring the cost in line with international standards. Eventually, in July 2019, decision makers at the UAE Ministry of Economy decided to adopt and publish a list of service fees to be reduced and waived relating to trademark registration, renewal inspection in enforcement of trademarks and parallel import complaints. The new nominal fee for trademark registration was reduced by 33%, decreasing the official fee for registration from AED 10,000 to AED 6,700. This move is expected to encourage brand owners to increase their protection in the UAE to cover various elements such as shapes, slogans, terms, colours and other core components of brand integrity.

Additionally, grievances or appeals before the Trademark Appeal Committee from provisional refusal or office action by examiner is now available free of charge. This used to be subject to a fee of AED 5,000.

In addition to the above, officials at UAE Ministry of Economy recognise the necessity to offer an accessible and proactive enforcement system. Therefore, a decision was made to waive the official fees associated with any request or application made by trademark owners to officials at the Trademark Office to investigate incidents of trademark infringement. Registered commercial agents in the UAE also benefited from the wavier of certain fees as they are no longer required to a pay fee to seek protection from parallel import by virtue of issuing administrative circulars to notify registered commercial agencies rights to border authorities, i.e. UAE Customs. These fees were previously mandatory following administrative enforcement action taken before the Ministry of Economy in anti counterfeiting and infringement cases and the enforcement of commercial agencies rights against grey market/parallel import shipments.

BSA is keen to see brand owners benefit from these new arrangements and urges all professionals in the IP field to partake in continuous dialogue with UAE Ministry of Economy to encourage enhanced protection which is both affordable and aligned with international standards.

For any enquiry or additional assistance in trademark prosecution, enforcement of IP rights, commercial agencies or general IP legal services in the UAE and the wider Middle East region, contact Head of Intellectual Property, Munir Suboh.