The Media and Entertainment Law Review: United Arab Emirates
Despite an extended lockdown and freeze on production activity, as well as an inevitably stagnant market for advertising as covid-19 affected 2020, we have still seen some interesting developments in the UAE media landscape.
MBC, still the dominant player in free-to-air television, has decided to sever its long-term commercial relationship with media agency Choueiri. This will start from 2021 and should see MBC taking control of the entire range of potential commercial tie-ups across its multiple platforms, and we see this as a massive opportunity for content producers and brands. The 2019 joint content venture with twofour54 and Image Nation had begun to deliver the anticipated local content, albeit severely hampered by the lockdown. Local pay TV behemoth OSN continues to realign itself to a more local market: its Arabic version of Come Dine With Me was launched with fanfare. Most importantly, the deal that OSN struck with Disney for its Disney Plus content was seen as aggressive and likely to be a driver for long-term consumer subscription. Notwithstanding these (and many other) interesting and innovative deals, the market for sports broadcasting remains difficult and expensive, affected as it is by huge levels of piracy and various local territorial issues.
As with all global platforms, the UAE has seen an increase in subscriptions for all subscription platforms. Starz Play still remains the dominant over-the-top (OTT) player in the region, but the numbers are tight across the region for all platforms: competition remains fierce for consumer eyeballs. International OTT operators remain committed to expanding their offering into commissioning Arabic language and local English language content, but again, this has slowed because of the lockdown. Advertising regulation remains largely unchanged, with the focus of government regulation shifting to medical advertising and, in particular, the role that influencers have chosen to play in spreading information and materials regarding codiv-19 and general health and immunity matters The Advertising Business Group, formed over the past few years, has undertaken several key research papers on several matters, with a particular interest in fascinating regional research about gender stereotyping in advertising.
In general, the lockdown has deeply affected the local production industry. The second quarter saw no activity at all, with local producers banding together to work on guidelines for reopening. Working closely with the Abu Dhabi Film Commission and the Dubai Film and Television Commission, the guidelines have been finalised and continue to be refined as needed.
The UAE podcast market has grown yet again, as consumers were forced to find more and different entertainment outlets. Arabic language podcast producers are sending out more content than ever before to a devoted audience.
As a law firm operating in the sector, we are seeing an incline in the desire to formalise local music agreements in line with international practice. We attribute this to the appetite for music extending beyond language in so many countries, and watch the space with interest. Notwithstanding this, the UAE continues to operate without music collection societies.
From a regulatory perspective, there has still been little movement since the 2017 Cabinet Resolution on Media Content (with its corresponding Ministerial Resolution) (2017 Resolutions) and the controversial 2018 Electronic Media Activity Regulation Resolution (E-Media Law). An advertising guide launched at the end of 2018 was much-commented on but was, in reality, a high-level summary of the 2017 Resolutions and the E-Media Law, adding only some clarifying wording around compliance in relation to social media posts.
Legal and regulatory framework
There are two key regulators in the United Arab Emirates. The large Telecommunications Regulatory Authority (TRA) has, among its many tasks, the ability to regulate content that is carried over its infrastructure, and by its two key telecommunications licensees (Etisalat and du). The more focused National Media Council (NMC) is specifically designated with regulatory control over the media and associated industries; Federal Law No. 11 of 2016 on the Regulation and Powers of National Media Council sets out its key powers. Article 4 sets out the key objectives of the NMC:
- drafting the state media policy;
- enacting and ensuring the implementation of media legislation; and
- coordinating the media policy between the member emirates in such a manner that it complies with the policy of the state inside and abroad, supports the federation and highlights the national unity concept.
This broadly means that the NMC has the power to set out, by way of its board, the standards and regulations that it expects to see implemented in the country.
The two regulators tend to divide regulation between them, but there is, in some areas, some duplication.
The media industry is mainly controlled by Federal Law No. 15 of 1980 concerning Printing and Publishing (PPL). The PPL, despite predating most commonly used media technology, remains the predominant law, with the regulators both confirming its application across the new media. Outside of establishing the rules applicable to those wishing to run a printing press or secure a free-to-air broadcast licence, the Law also sets out the basic tenets of content regulation; Section 7 sets out, in simple form, the restrictions that apply to media content.
Augmenting the PPL is Annex 1 of the TRA's Internet Access Management Policy, known as the IAM, which sets out the basis upon which the TRA can block a website (i.e., a list of 17 categories of content that are not permitted to be transmitted over the TRA network, and that will be blocked). The list contains the type of content that might be expected: pornography, promotion of terrorism, criticism of religion and such like. The IAM allows the TRA to block (in practice, to require telecommunications licensees to block) any such content. UAE residents are familiar with the 'surf safely' message that appears when they try to access content that is blocked.
In 2010 and 2012, the NMC passed further content laws under National Media Council Chairman Resolution No. 20 of 2010 on the Standards of Media Content and the Chairman of the Council Resolution No. 35 of 2012 on the Criteria of Advertisement Content in Media. The status of these remains uncertain as they have since been largely superseded by the 2017 Resolutions. The more important of these for the content industry is Cabinet Resolution No. 23 of 2017 Concerning Media Content and the related Board Resolution No. 26 of 2017 on Media Content. The latter, in particular, is extremely prescriptive as to content regulations and standards, and has expanded the description of prohibited content to enable easier compliance for content producers.
A key associated law is Federal Decree by Law No. 5 of 2012 on Combating Cyber Crimes (CCL), which is noted as much for the severity of its penalties as the content of the law itself. The fines thereunder were increased for several offences late in 2018, reflecting the UAE's concern about material that is related to terrorism or otherwise dangerous to its residents. That obviously incendiary material aside, the CCL also covers areas of more content-focused issues such as privacy, defamation, pornography and gambling.
Free speech and media freedom
i Protected forms of expression
Freedom of speech and the right to information are protected by the UAE Constitution; however, exercising such rights must not contradict or violate other laws.
The UAE allows all speech except that which is prohibited under the content laws set out above. The basic categories of prohibited speech can be summarised as follows:
- respect God, Islamic belief, heavenly or monotheistic religions, prophets and messengers;
- respect the ruling regime in the state along with its symbols, organisations and interests;
- respect the cultural and civilisation heritage and national identity of the state;
- refrain from publishing anything that could be offensive to national unity or incite hatred or acts of terrorism;
- respect the policies adopted by the state;
- refrain from offending common social values;
- refrain from offending the economic, judicial and security system;
- do not publish misleading or biased news and rumours;
- avoid offending children and women or any other group in society;
- respect privacy rules and the personal life of individuals;
- respect all rights, including intellectual property rights;
- refrain from publishing or circulating any content that could induce the committing of crimes;
- avoid material violating public morals; and
- refrain from publishing false news.
In addition, there is a specific law that prohibits hate speech: Federal Decree by Law No. 2 of 2015 on Combatting Discrimination and Hatred. This law has been much discussed but remains largely untested in the courts. It specifically punishes hate crimes and discrimination with penalties including imprisonment (of from six months to 15 years) and fines of between 50,000 and 2 million UAE dirhams.
There are restrictions on certain areas in the country that cannot be entered for filming; nor can they be recorded incidentally. These comprise key government buildings and military installations, all of which are protected for security reasons.
In general, commercial cameras will require a permit to be used in public in any location: police are empowered to request a copy of a permit if a person is found to be commercially operating in public spaces. These can be obtained from the relevant film commissions in each emirate. In addition, as is usual globally, permission should be ideally sought from the owners of private property before filming is commenced.
Privacy is revered in the UAE, and this belief is set out as a principle within the Constitution. Following this principle, it is prohibited to record a conversation, by camera or audio means, without the specific consent of the party being recorded. That would be considered to be illegally obtained materials under the Penal Code and the CCL, if an information technology aspect was present.
Article 2 of the CCL is important. It states that it is prohibited to capture, transfer, copy or keep images that invade a person's privacy. This law is enshrined in the CCL and is taken seriously by the authorities. A local platform found itself in contravention of this law when it was filming a 'candid camera'-style programme. Two women had allegedly verbally agreed to take part, but, when they saw the final product, they were not happy and lodged a claim with the public prosecutor. The failure of the producer to secure written consent from the women was detrimental, and all parties associated with the segment, including the hosts of the programme, were fined.
Generally, news sources secure their information from government sources rather than unofficial sources. The government has released several stories reiterating its distaste for fake news and rumour-mongering: it does not view the use of unofficial sources as appropriate and it has the power to take action if those sources are considered to be incorrect.
iii Freedom of access to government information
There are no such laws in the United Arab Emirates. The government distributes the information that it wishes to be distributed itself, and provides that information to news gatherers.
iv Protection of sources
There are no such laws or customs in the United Arab Emirates, and no recent cases to report.
As a general note, the government can require information from any entity it deems necessary for its operation and protection.
v Private action against publication
Because two of the key areas where claims might be raised (defamation and breach of privacy) are established under the Penal Code and the CCL, citizens tend to take action by approaching the relevant police department and seeking its assistance. This means that the decision as to whether action is taken tends to fall to the police prosecutor rather than an alleged victim.
Private cases are rare, as they would, on the whole, require proof of damage, and in a jurisdiction where only direct and provable damages will be awarded (that is, no punitive damages or consequential loss are available to claimants), cases such as these tend not to proceed in the civil courts.
Currently, the United Arab Emirates has no universal law covering the area of data protection – there are only two free zones that have developed their own systems. In addition, there are specific laws relating to protection of healthcare data, and a stringent law on protection of data for the finance sector is expected to be passed soon. There are provisions of general application in relation to the processing and transfer of personal data; specifically, Articles 379 and 380 bis of the UAE Penal Code, which prohibit the wrongful or unlawful disclosure of a secret, information or data in the course of business or professional activities. While there is no guidance in relation to what a secret is in this context, personal data in the context of location may constitute a secret. This is not often used as the basis for a claim.
vi Government action against publication
There are no recent cases to report. The government will be most likely to block material if it wished to take any action.
i Copyright and related rights
The United Arab Emirates is a member of the World Trade Organization, and a signatory to the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights. Federal Law No. 7 of 2002 Pertaining to Copyrights and Neighbouring Rights (Copyright Law) reflects the Berne Convention in many ways. Some key differences might be:
- the limited exceptions for fair use or fair dealing: in the UAE, the key areas would be limited to personal use, a single copy of a computer program required for processing, judicial proceedings, research, criticism and review, and small non-commercial performance;
- moral rights are not assignable and do not extinguish;
- a licence or assignment of economic rights must be in writing, and must specify the duration and place of exploitation; and
- 'work for hire' is not noted within the law, and so all assignments of intellectual property rights should be specifically obtained, where needed.
In practical terms, the UAE does not yet have a collective management organisation for any rights, which can make it difficult to undertake proper licensing regimes.
There are no specialist courts for copyright matters in the UAE. Article 34 of the Copyright Law provides an author with a right to request the court of first instance to issue certain orders with regard to a work that has been reproduced without his or her permission. These orders include the making of a full report, a ban on the illegal activity, an attachment of the original work, and the appointment of an expert to calculate the proceeds resulting from the infringement and to obtain proof concerning the infringement. If any of the above orders are handed down, the applicant must file a substantive proceeding with the relevant court within 15 days of any such order to prevent it becoming void. Upon the decision of the substantive proceedings, such an order may be made permanent.
It is possible to request criminal action for copyright infringement in the UAE, and this is done by way of application to the Copyright Office, which then liaises with the relevant police prosecution office.
Injunctive relief can be difficult to obtain in the UAE. If requested, the court will decide whether a claiming party has an effective right in the UAE, if there is urgency in the matter, and whether there may be irreparable damage if the order is not handed down.
ii Personality rights
Because the United Arab Emirates has stringent laws relating to the use of the image of any person, the rights associated with personality rights and image rights are tied up in the principles associated with privacy. No separate right exists.
Competition and consumer rights
The two areas of law comprising consumer law and competition law have recently been combined to be regulated by one authority, the UAE Competition Committee, under the Federal Ministry of Economy. Because of this combination of laws and practice, a surge in activity by the regulator has not yet been seen, although there have been a number of interesting developments that may, in future, positively affect a media industry wishing to proactively explore mergers.
It has been reported that the UAE Competition Committee wishes to undertake a market study in the local film industry, and this is expected to take place in the near future. It is understood that the focus will be on the theatrical side of the business.
The Copyright Law contains no safe harbour provisions designed to immunise intermediaries from liability for copyright damage. In fact, the Copyright Law contains no provision dealing expressly with secondary liability at all. The issue of liability for contributing to copyright infringement could conceptually be dealt with under general tort law (tort is recognised in the UAE under Federal Law No. 5 of 1985 on Civil Transactions) and principles of joint liability. This has not been seen in practice.
The CCL is directed at both owners and operators of an electronic site or information network, and so may, in theory, have application to a party that hosts user-uploaded content.
Article 39 provides:
Any owner or operator of an Electronic Site or Information Network who deliberately and knowingly stores or makes available any illegal content or if he fails to remove or blocks access to this illegal content within the period determined in the written notice addressed to him by the competent authorities that states that content is illegal and is available on the Electronic Site or Information Network shall be punished by imprisonment and a fine or by any of these penalties.
The takedown set out in Article 39 of the CCL means that any party must respond to a written notice that it receives from the competent authorities.
In addition, it is possible to interpret the CCL as stating that any entity acting as an intermediary or service provider could commit an offence if it benefits from or unlawfully facilitates a third party's uses of communication services through its information network. Article 35 of the CCL provides:
Any person who benefited or unlawfully facilitated to a third party the use of communication services or audio or visual transmission channels through the Information Network or the Information Technology Tool shall be punished by imprisonment for a period not less than one year and a fine not less than (AED 250,000) and not exceeding (AED 1,000,000) or by any of these punishments.
There is no clarity on what the authorities might deem to be unlawfully facilitating, but arguably this may include leaving up content that is known to be infringing. Again, this has not been seen in practice.
Contract disputes vary widely, as would be expected in any jurisdiction. Covid-19 has seen an increase in cases claiming force majeure in all industries, and media are no exception. Notwithstanding this, with all business in the media and content creation chain being equally affected by the crisis, parties have tended to work together to achieve the best possible outcome for all, without recourse to the courts.
i Failure to pay
This is the key area of concern to content producers in the region: a long-standing tradition of working without effective contracts has led to a situation where a supplier might not be able to adequately force payment obligations against a client or licensee. There has been improvement in this area, although contracts that were drafted for another age of media are still encountered, such as citing telex as a form of available notice methods or seeking delivery on Beta tapes. These have not been updated to reflect an actual transaction.
ii Use of content beyond usage rights granted
This is generally an issue with advertising in the region, although it also sometimes occurs in broadcasting. Producers may acquire third-party content for a limited exploitation window, and that window is exceeded by the platform, client or broadcaster. Often made more difficult by the failure of a contract to adequately address the position if this occurs and the imbalance of negotiating power that might exist between the parties, it can fall to the producer to pay for these rights. There is often a mismatch between the clients' desired usage rights and the rights obtained by the producer.
This issue is further complicated by a small but enduring number of producers who simply do not clear third-party rights at all in the hope that this small jurisdiction will not draw the attention of the international rights holders.
iii Inability to procure a public performance licence from a collective management organisation
The music industry in the UAE operates in a manner that is different to most jurisdictions. This issue continues to cause concern to local users of music content and international platforms that rely on collective management organisations to secure public performance rights for them, and to pay foreign artists under their reciprocity arrangements. A complex analysis of technology and law must be undertaken to work out how the rights can be acquired, and locally, it is simply not possible to acquire them except by way of direct licence (generally available only for Arabic language music).
Year in review
In the UAE, as with the rest of the globe, 2020 will largely (and possibly only) be remembered for all the activity that did not take place, rather than anything that did. Finance, which we noted as being tight in the sector in 2019, is even tighter. However it is thought that the opening of the market to full production will mean the growth in finance that we had expected might still eventuate.
The UAE still awaits the introduction of a formal data regime. With laws being introduced into more of the UAE's neighbouring countries, many larger players are already moving to a more 'compliance' data management system.
The key concern for every player at all levels of the media and content chain is the normalisation of industry. In this regard, we expect industry bodies will continue to work hand in hand with the relevant authorities to ensure safety as the primary concern, while still allowing the industry to operate. We expect this to continue into the early days of 2021, and to be the dominant focus for all.
Outside of that, we continue to await the implementation of the UAE federal data protection law.