Control of the Media in UAE Law
If the head of STA was to look at the internet tabs open on our computers right now he’d wonder if we had done any work today, with Facebook, BBC News, The National, Buzz feed, the Financial Times and various national publications from around the world all featuring on our title bars. Fortunately (and for once) I have an excuse – each and every one of these websites falls within the category of “media”, which is the focus of this article. Well, “media law” speciﬁcally, but I’m hoping he won’t probe in too much detail.
So, where should we start? As we have discussed in previous articles, there are several limbs to every legal practice area, niche or otherwise, and each area may be governed by its own separate set of rules and regulations. Therefore in the interests of saving both papers (see our recent piece on the environment and construction waste) and your time we shall concentrate our attention on one speciﬁc area – namely “how is the media controlled by law in the UAE”? Yet in order to do this, we should ﬁrst consider the basic deﬁnition of media in accordance with the law. In the USA, the First Amendment to the Constitution refers to the media as the “gathering, publishing and distributing of information and ideas”. In Europe, the European Convention on Human Rights cites the “receiving and imparting of information and ideas”, and goes so far as to specify the inclusion of broadcasting, television, and cinema. In the UAE… And this is the problem. In the UAE there appears to be an inherent lack of law pertaining to the media. Or no up-to-date law, at least – which is a glaring omission in a global society which is creating so many new media platforms on a daily basis that our brains and electronic devices often struggle to process them all. The fact that revisions to the existing legislation were suggested in 2009 and again in 2013 implies a national acceptance of the inadequacy of the current provisions, but no proposed drafts have as yet been incorporated into law.
So what of the current position – how is the media controlled by law at present, and what reforms do the 2009 and 2013 propositions and subsequent debates suggest are needed? Perhaps the most obvious element of discussion that will come to mind when combining the terms “media” and “control” in a sentence is freedom of the press – namely, the freedom to publish information, ideas or opinions without suﬀering repercussions. This is by no means a new area of discussion, with international phenomenon’s such as the British privacy injunctions controversy of 2011 still fresh in the minds of many. Cases such as that of ex-F1 boss Max Mosely and News of the World before the European Court of Human Rights characterize the nature of the long-standing deliberation: which should prevail – the right to privacy,
Or the right to free speech? Of course, our avid readers will be aware that Volume I Issue VI of Court Uncourt included an article on defamation, which carried a full analysis of the UAE’s position with regards to this debate and outlined the fact that the publication of potentially defamatory material can result in severe consequences, particularly if the means of publication is via the press. In pursuit of avoiding repetition we won’t go into too much detail here, save for to say that Articles 372 and 373 of Federal Law 3 of 1987 (the Penal Code) respectively provide that “whoever attributes to another person, by any means of publicity, an incident which makes him liable to punishment or contempt shall be punished by detention for a period not exceeding two years or by a ﬁne not exceeding twenty thousand dirhams” and “detention for a period not exceeding one year or a ﬁne not exceeding ten thousand Dirhams shall be imposed upon anyone who, by any means of publicity, disgraces the honor or the modesty of another person without attributing any particular act to the defamed party”, with the additional clariﬁcation that “if libel is committed by means of a publication in any of the newspapers or other printed media, it shall be considered an aggravating circumstance.”But what other legislation provides any rights or restrictions with regards to the media’s freedom of speech? There is a plethora of guidance on the “media” in general, with Federal Law Number 7 of 2002 dealing with copyright, Council Decision Number 35 of 2012 regulating advertising and Cabinet Decision 14 of 2006 controlling the National Media Council – but the law appears to remain silent on actual media content.
The only provisions of strict relevance, then, seem to be those of the Penal Code. It, therefore, seems reasonable to assert that the current law does not promote freedom of press insomuch as it highlights restrictions of the press. As UAE media law expert Dr. Matt J. Duﬀy suggests in an article published by Gulf News on 23 March 2012, it would appear that the present law restricts what the press can do, rather than oﬀer any protection over what it may do.
In an amalgamation of the foregoing, head of the National Media Council Sheikh Abdullah bin Zayed announced in 2013 that in a poll analyzing the freedom of expression aﬀorded to media and the consequential punishments, the UAE ranked 158th out of 196 countries. Evidently, this is an exceptionally poor placement, especially when considering the fact that the UAE is accustomed to topping the league table in the majority of positive surveys in which it takes part. However, Sheikh Abdullah qualiﬁed his announcement with the explanation that the poll considered only the legislative position – not the actual practice of a country. Therefore the fact that journalists and other media professionals are not expressly protected by law does not automatically mean that the UAE deals out harsh punishments to any such person exercising his right to free speech. Still, the point remains that in order to both improve its ranking and provide clearer guidance to the press, the UAE must establish a deﬁnitive and up-to-date law with regards to the media.
It is worth noting here that almost every law in every jurisdiction is developed in accordance with the country’s culture, history, and values, often in accordance with precedent emphasizing the need for such legislation. Accordingly, any media (or indeed, any other) law implemented in the UAE would need to bare such factors in mind. As Dr. Duﬀy states in his aforementioned article, we could not simply lift one country’s media laws and bring them into force in the UAE – any law introduced here would need to pay respect to the presiding social and cultural customs. A good starting point may, therefore, be the Content Code (the Code) of Abu Dhabi’s Media Zone Authority (MZA) as issued in 2011. On acknowledging the inﬂuential capacity of the media, the Code emphasizes that caution should be exercised (an industry-speciﬁc application of the wise words of Spiderman’s Uncle Ben – “with great power comes great responsibility”) and outlines the importance of preserving the nation’s ethos by stating as a Key Principle that “The Code recognizes the importance of balancing freedom of expression with a duty to take account of the cultural and social expectations of society”.
An initial understanding would, therefore, give the impression that the Code strikes a reasonable balance between the UAE’s constitutionally- enshrined right to free speech and its national values, such as privacy. Yet in reality, it is likely to be the case that many matters fall into the grey area between the two principles, whereby publication of the story would breach the privacy of the protagonist, but the prohibition of publication would be inconsistent with the publisher’s right to free speech. As discussed in our article on defamation, in these circumstances many European courts have applied the test of public interest – namely, is it in the interest of the public to know the cited information? In light of the UAE law’s silence on the issue, the Code requires that the publication of controversial material meets its standards of “Editorial Justiﬁcation”. Outlined in the “Deﬁnitions” section, Editorial Justiﬁcation is “the reason the licensee has made and disseminated the content”. The Code goes so far as to specify that anyone considering the justiﬁcation of releasing information into the public domain should consider factors including the artistic and creative merit of the contents, whether the information is beneﬁcial to the public (for example, whether it is in the interests of public safety or exposes injustice) and whether the information can be proven as factually accurate.
Of course, this guidance is without limitation, and there are no cast-iron rules or examples in place controlling the content of published or broadcasted material. The Code’s Editorial Justiﬁcation, therefore, leaves scope for the application of the publisher’s discretion. Yet it goes without saying that certain considerations are mandatory, and the Code, therefore, lays down express rules with regards to aspects which must be taken into account. For example, Rule 2 regulates content which has the potential to cause harm or oﬀense, with the material such as that which is violent, sexual, discriminatory, distressing or inclusive of explicit language conﬁned to instances whereby it is contextually
justiﬁed. Moreover, the Code requires that clear warnings precede any potentially harmful or oﬀensive content. The protection of children from any age-inappropriate material is also paramount pursuant to Rule 1, as is the insurance that crime, public disorder or anti-social behavior are not expressly or inadvertently encouraged (Rule 3).
In addition to regulating content, the Code goes so far as to oﬀer guidance on the conduct of media-based entities. Rule 5 requires that the dissemination of all forms of news are reported impartially and with factual accuracy, with Rule 6.1 clarifying that editorial bodies have the responsibility of ensuring that material facts are not presented, edited or omitted in such a way that is adversely unfair on any party. In addition to paying respect to the aforementioned provisions of the Penal Code, Rule 7 (pertaining to privacy) introduces provisions prohibiting the intrusion of any electronic device, such as email or mobile phone communications (Rules 7.2 and 7.4). Although such guidance must be read in conjunction with the applicable legislation, these rules go some way towards demonstrating the way in which the Code would provide a strong foundation for an up-to-date media law consistent with the requirements and risks of modern society.
In the same way that this is by no means an all-inclusive summary of the Code, the topic of the freedom of the press is not the full extent of “media control” in the UAE. It is not only the publication and/or broadcasting of media content that is subject to regulation, but also the governing and ownership of the media entities themselves. Pursuant to Article 2 of Federal Law Number 15 of 1980 (the Publishing Law) the owner of a printing press must be a qualiﬁed UAE national without any criminal convictions. Likewise, as per Article 25, the owner of a newspaper must also be a qualiﬁed UAE national in excess of 25 years of age, free from convictions and not under the employment of any public service or foreign agency. Evidently, separate provisions are in place with regards to entities established in free zones, and locations such as Dubai’s Media City, Internet City, and Knowledge Village would be viable options to any foreign investor wishing to partake in the media spectrum. Here, and in accordance with Council Decision Number 1 of 2006, licenses are available not only in the publishing segment but also in the TV and radio broadcasting industries.
Yet regardless of the ﬁeld, licensing type, current law, and location within the UAE, the fundamental principles of the media industry remain the same. Any players within the media and broadcasting game should, therefore, proceed with caution when balancing their rights alongside the underlying values of the nation. As philosopher John Stuart Mill observed, “the individual does have the right of expressing himself. So long as he does not harm others”.