The Media and Entertainment Law Review: United Arab Emirates
Despite the inevitable slow-down due to covid-19, the United Arab Emirates (UAE) media industry is back in full swing. There are many developments and events on the horizon contributing to the growth of the industry. The most notable is, of course, Expo 2020, which opened in early October this year. Expo 2020 will introduce many international performing artists to the region, as well as inspire further innovation in the media and technology spaces.
In addition, the UAE is continuing to create large amounts of content, with a growing number of films, music and online material now being developed within the UAE and distributed worldwide.
The UAE podcast market has grown yet again, as the pandemic forced consumers 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 increased 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 we watch the space with interest. Notwithstanding this, the UAE continues to operate without music collection societies. However, there is talk that events such as Expo 2020 will inspire further movement in this area.
From a regulatory perspective, there has still been little movement since the 2017 Cabinet Resolution on Media Content (with its corresponding Ministerial Resolution) (the 2017 Resolutions) and the controversial 2018 Electronic Media Activity Regulation Resolution (the 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 on compliance in relation to social media posts.
Legal and regulatory framework
The UAE is a federation of seven emirates comprising Abu Dhabi, Ajman, Dubai, Fujairah, Ras Al Khaimah, Sharjah and Umm Al Quwain. There are two key regulators in the UAE that govern the media and entertainment industry.
The federal authority that regulates the media sector in the UAE and formulates media legislation, and ensures its implementation, to develop and broaden the media sector in coordination with the ministries concerned is the Media Regulatory Office (MRO), established by the Ministry of Culture and Youth (previously known as the National Media Council (NMC)). The MRO has yet to issue any media laws and regulations or amend the current NMC laws and legislation.
The other key regulator is the Telecommunications and Digital Government Regulatory Authority (TDRA), which until April 2021 was known as the Telecommunications Regulatory Authority. Among its many functions, the TDRA is empowered to regulate content carried over its infrastructure and by its two key telecommunications licensees (Etisalat and du).
Regulation in this sector therefore tends to be divided between these two bodies, but there is duplication in some areas.
The media industry is mainly controlled by Federal Law No. 15 of 1980 concerning Printing and Publishing (PPL). The PPL, despite pre-dating most commonly used media technology, remains the predominant law, with both regulators confirming its application across the new media. As well as establishing the rules applicable to those wishing to run a printing press or secure a free-to-air broadcast licence, the Law 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 TDRA's Internet Access Management Policy, known as the IAM, which sets out the basis upon which the TDRA can block a website or its content, regardless of where the entity is established (i.e., a list of 19 categories of content that are not permitted to be transmitted, broadcast, published or distributed over the TDRA network, and that will be blocked). The list contains categories of the type of content that might be expected: pornography, promotion of terrorism, criticism of religion and the like. The IAM allows the TDRA to block (in practice, to require the 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 NMC Chairman's Decision No. 20 of 2010 on Media Content Standards and Chairman's Decision No. 35 of 2012 on Media Advertisement Content Standards. The status of these remains uncertain as they have since been largely superseded by the 2017 Resolutions, of which the most important for the content industry are Cabinet Resolution No. 23 of 2017 on 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 by 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 these rights must not contravene or violate other laws.2
The UAE allows all speech except for what 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 Combating 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 (ranging 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 in the Constitution.3 Following this principle, it is prohibited to record a conversation, by means of photographic or audio recording, without the specific consent of the party being recorded. In the absence of consent, the recording would be considered illegally obtained materials under the Penal Code,4 and the CCL if an information technology aspect was present.5
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 laws on freedom of access to government information in the UAE. The government itself distributes any information that it wishes to be distributed, and provides that information to newsgatherers.
iv Protection of sources
There are no laws or customs regarding protection of sources in the UAE, and no recent cases to report.
As a general note, the government can require any entity to provide information the government 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 UAE is at the stage of drafting a federal data protection law applicable to UAE entities – there are only two free zones that have developed their own privacy systems. In addition, there are specific laws relating to protection of healthcare data, data related to and shared with government entities, and a stringent law on the protection of data for the finance sector. 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 UAE 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 Concerning Copyrights and Neighbouring Rights (the 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 expire;
- 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 specified in the Law therefore 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 for substantive proceedings with the relevant court within 15 days of any such order to prevent it becoming void. Upon the decision of the substantive proceedings, the 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, whether there is urgency in the matter and whether there may be irreparable damage if the order is not handed down.
The financial free zones have separate intellectual property laws. Actions in respect of any violations occurring within or originating from these free zones can be brought directly before their respective courts.
ii Personality rights
Because the UAE 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 areas of both consumer and competition law are regulated by one authority, the Federal Ministry of Economy, with the UAE Competition Committee operating under the umbrella of the Consumer Protection Department within the Ministry.
Recently, the UAE issued Federal Law No.15 of 2020 (the New Consumer Protection Law), which aims to revamp and repeal Federal Law No. 24 of 2006 (the Old Consumer Protection Law). The implementing regulations of the Old Consumer Protection Law, namely Federal Law No. 12 of 2007, are currently still in force.
The UAE Cabinet was expected to issue the accompanying executive regulations for the New Consumer Protection Law, subject to a proposal from the Ministry of Economy, within six months of the publication date of the New Consumer Protection Law; however, at the time of writing, the regulations have yet to be published.
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 law6 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, apply 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 the 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
The use of content beyond the rights granted 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 then that window is exceeded by the platform, client or broadcaster. Often further difficulty results from both the failure of a contract to address adequately this position if it occurs and the imbalance of negotiating power that might exist between the parties, and 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 right holders.
iii Inability to procure a public performance licence from a collective management organisation
The music industry operates differently in the UAE from the way it does in 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
Over the past few months, we have seen a gradual return to 'normal', with the UAE looking to prioritise growth in the country's media industry.
Earlier this year, twofour54 established Abu Dhabi Gaming (AD Gaming), with the intention to drive the UAE's thriving gaming and e-sports ecosystem.
Just recently, President His Highness Sheikh Khalifa bin Zayed Al Nahyan issued a law establishing the Creative Media Authority as part of the Abu Dhabi Department of Culture and Tourism.
The Creative Media Authority will enhance the growth of the emirate's creative sector and will act as a regulatory and supervisory body. By its very nature, it will assist in developing initiatives to attract, incentivise and develop small and medium-sized enterprises and professional talent in the sector, both from within the Middle East region and from the wider international markets.
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 market participants are already moving to more compliance-oriented data management systems.
Looking ahead, the UAE foresees exciting events on the horizon and, as the world (hopefully) returns to normal, the country will continue to establish itself on the global stage. We anticipate that the UAE will establish more authorities and institutions aimed at encouraging innovation and welcoming and assisting global market participants in the spheres of content production and distribution.
1 Martin Hayward is the head of digital and data at Al Tamimi & Co.
2 Article 30: 'Freedom to hold opinions and express them orally, in writing or by other means of expression shall be guaranteed within the limits of the law.'
3 The UAE Constitution provides that 'freedom of communication by post, telegraph or other means of communication and the secrecy thereof shall be guaranteed in accordance with the law', and this is considered to be intended as a declaration of a right to personal privacy.
4 Article 378 of Federal Law No. 3 of 1987 of the Penal Code.
5 Article 21 of the CCL.
6 Tort is recognised in the UAE under Federal Law No. 5 of 1985 on Civil Transactions.