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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.

Exclusive: A lawyer’s guide to keeping it professional on social media

In today’s environment, social media allows people to instantly share their opinions with the world. However, given the many heated issues that dominate our national discourse, there can be a tendency to post (or tweet) in anger or passion, which can lead to regrets later.

This risk is especially dangerous for attorneys. While attorneys may sometimes view their presence on social media to be in a “personal” capacity, the reality is that the line between personal and business can be blurred, or may not exist at all. In particular, with respect to an attorney’s ethical obligations, it may not be a very effective defence for an attorney to claim that she was acting in her personal capacity, and not as a lawyer, when she violated an ethical rule.

Recognising the rise of these issues in the age of social media, the State Bar of California issued a Formal Opinion in 2012 that addressed the interplay between postings on a supposedly personal social media page and the ethical rules governing attorney advertising. State Bar of California Formal Op. No. 2012-186. At issue were certain posts on an attorney’s personal social media page that highlighted the successes the attorney had on other cases, such as “Another great victory in court today! My client is delighted. Who wants to be next?” The California Bar concluded that, even among posts relating to the attorney’s personal life, such posts and others constituted the solicitation of clients or otherwise “concern[ed] the availability for professional employment,” and thus were required to comply with the rules for attorney advertising set forth in the California Rules of Professional Conduct.

Another potential issue exacerbated by the rise of social media is the potential for “positional” conflicts. Such a conflict may typically exist where, for example, an attorney argues for a certain interpretation of a statute in one lawsuit because it is in the best interests of one client, but then at the same time argues for the opposite interpretation of the same statute in another lawsuit on behalf of a different client. Comment 6 to Rule 1.7 of the California Rules of Professional Conduct (as effective Nov. 1, 2018) provides that such circumstances typically do not create a conflict requiring the client’s informed written consent unless certain factors are present.

However, it is arguably less clear how positional conflicts may function in the context of positions taken on social media. Comment 4 to Rule 1.7 provides that a conflict of interest requiring informed written consent) exists “if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities, interests, or relationships, whether legal, business, financial, professional, or personal.” Interpreting similar provisions, at least one bar association has stated that attorneys sharing information on social media sites should exercise caution “when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.” See District of Columbia Bar Ethics Op. 370.

Although some commentators have suggested that the D.C. Bar’s opinion goes too far to limit attorneys, social media posts can also create sticky client relations issues even if the posts do not rise to the level of a traditional conflict of interest. Below are some tips for avoiding issues when using social media.

Considering Staying Neutral

Social media is generally not a place for balanced, well-reasoned assessments of issues but is used by many to express visceral reactions to news events. While attorneys may feel the urge to immediately share their thoughts with the world, they do so at their own risk.

For example, if Congress is considering passing a law that may impact a client, an attorney may be inclined to immediately offer her or his opinion on that law without regard to whether that position is aligned with the client’s. Even if the attorney’s posting does not create an actual conflict, a client certainly may be less than pleased to see its law firm advocating for a position if that position stands to harm the client’s business, financial or legal interests.

Likewise, commenting on ongoing cases can also be risky, but attorneys who feel compelled to do so can limit their risks by avoiding taking a definite stance and instead presenting a balanced analysis. That could help avoid creating any potential positional conflict with the interests of a client of the attorney and her or his law firm.

Avoid Unprofessional Conduct

Attorneys (typically) understand that their correspondence and briefs should be consistent with the level of decorum expected of members of the bar. Too often, that level of decorum is thrown out the window on social media. However, despite the informality of social media, it should not be considered as a free zone for unprofessional conduct.

A good rule of thumb is to ask whether the comment made on social media would be appropriate if standing outside a courtroom or at a dinner party. Many times, attorneys post comments on social media that they would never say in a face-to-face conversation, much less one with a client.

In some respects, comments on social media are worse than face-to-face conversations, as they are generally broadcast to the world and preserved for posterity. Courts and bars are increasingly taking notice of these issues and applying the same bar rules to social media as they do to traditional legal correspondence.

Think First

The most obvious tip can often be the hardest in practice. Before posting on any substantive issue (e.g., legal or political issues), it is helpful to stop and think practically about the post and the possible response from their firms, clients, and potential clients. Where practical, it may be a good idea to first run the posting by a colleague or firm leadership to ensure that it does not create any unintended conflicts or client relations issues.

Too often, attorneys instead let their emotions take over and fire off a post without a second thought. While attorneys certainly can use social media effectively in establishing a presence in their community or in a certain practice area, the undisciplined use of social media can unfortunately create the wrong kind of presence very quickly.

Shari L. Klevens is a partner at Dentons US and serves on the firm’s US Board of Directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons’ global insurance sector team, and is co-author of “California Legal Malpractice Law” (2014).

Alanna Clair is a partner at Dentons US and focuses on professional liability defence. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”