Balancing Act: The Right to Privacy and Content Creation

27 Oct 2023

In the era of digital information and content creation, countries find themselves at the intersection of two fundamental principles: the right to privacy and freedom of expression. As these countries continue to modernize and enter the digital age, they face the delicate task of harmonizing their legislations, taking into account complex cultural, legal and ethical considerations. Several GCC countries enshrine the right to privacy in their constitutions (including the UAE, which recognizes the right to privacy as a constitutional right). Additionally, a majority of these countries have introduced and enacted data protection laws that regulate the processing of personal data, protecting citizens from data breaches and unauthorized access. The Federal Decree Law Number 45 of 2021 (the UAE Data Protection Law) which closely resembles the EU’s General Data Protection Regulation (the GDPR), allows individuals to control how their personal data is processed, with an added emphasis on informed consent. Companies have a legal obligation to ensure that the methods they use for storing and processing an individual's personal data comply with the standard prescribed within the law. Many GCC countries have introduced cybersecurity and surveillance laws to ensure the security of digital communications. However, these measures often raise concerns about possible violations of the right to privacy.

In the UAE, there are certain safeguards to protect the fundamental right to privacy. The UAE Constitution of 1971, under Article 31, guarantees the right to confidentiality of communication, whether by post or any other means. This provision ensures that individuals' communications are protected from unwarranted intrusion. Under the Federal Law Number 3 of 1987 (the UAE Penal Code), defamation and privacy offenses are outlined particularly under:

  • Article 372: This article prohibits the publishing of anything that could expose the victim to public hatred or contempt. It aims to prevent the dissemination of content that could harm an individual's reputation or dignity.
  • Article 373: Article 373 specifically targets false accusations that cause dishonor or discredit. This provision aims to deter false statements that can harm a person's reputation.
  • Article 378: Article 378 goes further by prohibiting the publishing of any news, pictures, or comments that may reveal the secrets of people's private or family lives. Importantly, this prohibition applies even if the published material is in the public interest and true. It underscores the importance of respecting individuals' privacy. The term 'secrets' typically involves personal and private aspects of one's life, as opposed to ‘confidential information’, which often pertains to sensitive data protected by legal or contractual obligations.

The provisions in the UAE Penal Code are supported and supplemented with protections under the Federal Decree Law Number 34 of 2021 (the UAE Cybercrime Law). The UAE Cybercrime Law prohibits using electronic equipment to eavesdrop, recording without consent, and “spreading news, electronic images, photographs, footages, comments, data or information, even if true and correct, to harm such person”. This indicates that any content that portrays an individual without their consent can potentially be considered a criminal offense.

These legal provisions highlight the UAE's commitment to safeguarding individuals' privacy, reputation, and dignity in both online and offline contexts. Violating these provisions can lead to legal consequences and penalties.

In the UAE, defamation is considered a criminal offense, defined as making false statements that harm an individual's reputation or subject them to punishment or contempt. Unlike countries like the UK and US, UAE law do not provide a pervasive defense of truth or justification for defamation cases. This means that simply proving the truth of a statement may not be an effective defense.

One notable aspect of defamation in the UAE is that it is treated as a criminal matter rather than a civil one. This means that individuals can report defamation cases to the police, and legal costs, which can be a barrier in civil defamation cases in many jurisdictions, become irrelevant.

Additionally, the UAE takes privacy rights seriously. There have been instances of prosecution and deportation related to sharing critical content, including images of vehicles and license plates, on social media platforms. It's unclear whether these cases involved privacy breaches, defamation, or a combination of charges.

In response to these legal complexities, content producers are encouraged to obtain informed consent for all content creation and usage, including parental consent for underage participants. Distribution platforms should also ensure that such consent is in place to avoid legal issues and protect the rights of UAE residents while allowing the content industry to thrive within the bounds of local law.

Some important considerations when charting the path forward is to be culturally sensitive and respectful of local values ​​and norms when creating and distributing content. Moreover, with the advancement in technology, issues such as deep fake videos and AI-driven content generation raise new legal and ethical questions that are yet to be tackled.