One fine morning, as you walk into your office, all you feel is the judging eyes of your fellow workers; you are lost and not aware of what happened until you find out that someone has published a false derogatory statement against you in the newspaper. As a consequence, severe action can be taken against the person who has published in the newspaper such derogatory statements against you. We say anything we wish in public without being aware of the consequences of such words if it leads to the defamation of someone.
For instance, you accused the owner of a restaurant of food poisoning even though the true reason for falling ill was not because of consuming the restaurant’s food; this slip of the tongue could extract detrimental consequences on you for defaming the restaurant.
As much as the concept of freedom to express and freedom to speech has been given great importance, to the extent where many freedom fighters fought to the death to achieve this liberty of speech. How far can the statement made by George Orwell, a famous novelist, “if liberty means anything at all, it means the right to tell people what they do not want to hear” can be agreed in practice?
A famous activist, Jack Monroe, quoted “freedom of speech is not freedom to lie, defame nor incite hatred and abuse”. Most of you will agree with the comment made by Jack as compared to the statement made by George. Freedom of speech cannot be misused to harm another person’s reputation or honour in society. ‘A single lie destroys a whole reputation of integrity’ as quoted by a Spanish writer, Baltasar Gracian. The dearest treasure that one wishes to own beyond money is reputation; nothing supersedes for a man than to live with honour. Every person on this planet is entitled to have his/her reputation protected. Any kind of false or derogatory statements or comments, via any mode of communication, either oral or by publication, has been made against any person in a manner damaging one’s reputation shall amount to defamation.
Libel could be defined as any statement made in writing or published, whereas slander could mean any oral statements or comments made.
All the countries have laws governing defamation, to ensure a balance is maintained between the freedom of speech and spreading of false comments or statements to harm a person’s reputation on the pretext of using the freedom to express. The United Arab Emirates (UAE), is very stringent when it comes to laws protecting one’s status, and unlike other countries, defamation here is criminalized. Federal Law Number of 3 of 1987 on the Penal Code (the Penal Code) provides in articles 372 to 377 the provisions governing the defamation-Article 372 of the Penal Code lays down what amounts to libel as whoever passes any statements or comments against any person, thereby, making him subject to punishment or contempt, through any means of publicity, shall be liable for the offence of libel. Where such publication is done in one of the newspapers or any other printing materials, it shall increase the seriousness of the offence. A person who committed libel shall be punished with imprisonment for a period not exceeding two (2) years or shall be liable to pay a fine of not exceeding UAE Dirhams twenty thousand (AED 20,000). The person shall face severe imprisonment and a fine if such libel is made against any public servant, or a person in charge of a public service damaging the honour or the reputation of the families or to accomplish an illegal purpose.
Article 373 states that whoever makes insulting statements or comments against any person causing injury to the honour or dignity of that person without any justifiable reason, through any means of publicity, shall be liable to be punished by imprisonment for a period not more than one (1) year and a fine of not more than UAE Dirhams twenty thousand (AED 20,000). If any person is found to have passed any kind of insulting statements or comments against a person who is a public servant, damaging the reputation and honour of the families or to achieve any malice purpose shall be made subject to imprisonment for not more than two (2) years and also a fine of not less than UAE Dirhams twenty thousand (AED 20,000) can be imposed. Article 374 provides that:
As per article 375, if the person liable for committing the offence of libel can establish that such statements are true or where such statements when made against a public servant can be linked with their employment or service then shall not constitute a crime of defamation. Article 376 exempts the verbal or written statements made in defence by the parties to litigation before the court or competent authorities, provided such statements fall under the purview of the right of defence.
In Cassation Number 503 of 2012, the court has commented explaining the definition of slander in the context of the right to defence, “slander can be any kind of verbal abuse or defamatory statements which can cause damage to the reputation of the person or degrade that person”. It further stated that it is not necessary that such offensive statements be made on the face of the victim or has been included in the statement of defence, as long as it falls outside the scope of the grounds of defence and can be established that it can harm the reputation, honour and pride of the person and the sanction of punishment is not just merely based on if the victim has heard such offensive statements or not”. Article 377 states that any kind of reporting made to the judicial or administrative authority, in good faith to fulfill one’s responsibility of the same, shall not constitute an offence of defamation. A case for defamatory should be filed within three months from the date when such a statement has been published.
On lodging the complaint, the police will proceed with their investigation to determine the case of defamation and on the confirmation, it shall be referred to the public prosecutor. In one of the cases, the Abu Dhabi court has dismissed the plea for defamation on the account that the complaint has not been lodged within three months as stipulated by law. Failure to complain within three months from the date of publication of such defamatory statements can take legal ground to stand the case of defamation.
In Case Number 318 of 2012, the Court has ruled that if the defamed party has failed to complain within three months of publication of such defamatory statements, it shall be considered that the defamed party has pardoned the defamer and the defamation case will no longer be possible.
With the advent of various technologies and latest apps for networking, like Facebook, WhatsApp, Twitter and so on, it is very common to come across a million negative, disrespectful or distasteful statements on various online platforms, but in that there can be statements which could cause harm to one’s honour or reputation or spread hatred and racism or insult religions or individuals. Online defamation can extract severe punishments for it can spread defamatory or insulting statements to a larger extent as compared to newspapers in this highly technology-driven world. Federal Law Number 5 of 2012 on Combating Cyber Crimes (the Cybercrimes Law), your lawyer will utilize such provisions that governs online defamation.
Article 20 of the Cybercrimes Law stipulates that whoever using a computer network or any information technology to pass insulting or accusatory statements against any person, subjecting him to punishment or disrespected by others, shall be made liable to both imprisonment and a fine of not less than UAE Dirhams two hundred fifty-thousand (AED 250,000). If such insulting comments have been made against any public servant, it shall intensify the offence.
As per article 39 of the Cybercrimes Law, an owner(admins) of any page or operator of any website or information network is prohibited from deliberately storing or making any illegal content available. Article 374 of the Penal Code also governs defamation using any electronic means like telephone or emails. Any kind of slander or defamatory statements against religion can extract serious punishments in the UAE.
In Cassation Number 248 of 2018, the court has interpreted as to which provision between 374 (1) of the Penal Code and Article 20 of the Cybercrimes Law, shall be made applicable for the insults made through WhatsApp. On analyzing both the provisions, the court has derived to a conclusion that any insult made via WhatsApp messages shall fall under the scope of Article 374 (1), as WhatsApp is exclusively used by telephone and only connects the two or more persons, where the sender can directly send to the addressee, excluding the persons who are not concerned with the message sent, thereby prohibiting them to have access or share such information unlike how any information can be accessed or be made available on the computer network or any information technology.
The employer must make the rules and regulations of using social media in the workplace crystal clear. In case any individual uses the office premises, network or device to pass any defamatory statements and has been charged with a criminal complaint, the employer also shall be dragged into the legal proceedings, irrespective on what basis such issue has arisen. As a sponsor, the employer too shall undergo the consequences of such offence. For the investigation, the police may obtain access to the office computer systems or even may seize if such a system has been used in committing a criminal offence.An employee is entitled to complain to the employer according to the provisions of the Penal Code, where the employer issues notices or memos containing statements or words of abuse, sexual comments, discriminatory, or any other such defamatory comments.
As long as the advice, explanations or any other such communication, either oral or verbal, made to the employee by the employer contains the usage of appropriate words, then it shall not amount to defamation. It is pertinent to note that defamation cannot constitute a civil case, however, by article 282 of Federal Law Number 5 of 1985 on the Civil Code, a person can claim compensation for any wrongful act done causing injury or harm to him. Beware before you speak, the slip of tongue or actions, defaming any person, can be liable to severe punishments in UAE.