<p><span style="color:#1eaff2;">Defamation and Insults through the use of Technology</span></p>
<p>Judgement 9149/2022 </p>
Defamation and Insults through the use of Technology
Defamation and insults are considered to be crimes in the UAE. Whilst those crimes may be prosecuted under the UAE’s Criminal Law, Federal Decree Bylaw No. 34 of 2021 concerning the combat of Rumours and Cybercrimes (“Cybercrimes Law”) is also frequently applied in disputes involving defamation, considering that the Cybercrimes Law applies to crimes involving technology (e.g. committed via emails).
This article will discuss a recent Dubai Court judgment (Action 91949 of 2022 dated 29 August 2022) and the test the Court applied to determine whether the accused had “insulted” the victim and whether criminal intent could be established.
This article will also address other crimes under the Cybercrimes Law.
Blackmail or threats
These terms are used interchangeably to address crimes where one threatens to cause harm to another or actually commits harm. Usually, the demand involves a request for payment of a certain sum. However, this is not restricted to payment of funds as the crime is broad and addresses other types of unlawful demands (e.g., “If you do not pay me AED 10,000, I will expose you to those entities and reveal all the documents! You have 24 hours!”)
Article 42 of the Cybercrimes Law provides for a penalty of imprisonment not exceeding two (2) years and/or a fine ranging from AED 250,000 up to AED 500,000 for whoever uses the internet or electronic systems to threaten another person, forcing him/her to act or refrain from acting in a certain manner. If the threat is made to induce someone to commit a crime or a dishonourable act, the penalty is increased to imprisonment of not more than 10 years.
As established by the court in this judgment, an “Insult” means “swearing by explicit utterance of insulting words.” An insult may be “any imputation of defect or an expression that demeans an individual or tarnishes his reputation before others.” The UAE courts enjoy a wide discretion to determine whether the language or terms used by the offender fall within the foregoing definitions.
Defamation occurs by either: i) a person deliberately causing harm to another person, known as a civil crime (délit civil); or ii) a person causing harm by way of negligence, which is known as semi-civil crime (quasi-délit civil). (Dr. Abdel Razek Ahmed Al Sanhoury – The Explanatory Note of the Civil Code -The General Theory of Obligations - Part 1 -Page 644).
This typically occurs when someone communicates false statements to a third party about someone in a negative manner that would subject him/her to hatred and damage his/her reputation.
This specific crime has become quite common. Part of the reason behind the increase in these types of claims is that the offender believes that he is speaking the truth and that there is nothing wrong with his conduct. However, this is not always the case as one may be speaking the truth that he personally believes, but it may not be accurate, or he/she does not have the legal capacity to make such conclusion.
For example, one may describe a work colleague as being involved in bribery (which he believes is a truthful description) and shares this information via email with work colleagues. Bribery is a criminal offence and accordingly, the email describes the work colleague as one who committed a crime. Concluding whether or not a crime was committed is for the local UAE authorities to determine.
Defamation may also occur in posts and stories on social media, emails and even when posting a negative review against business you had dealings with, when it damages the reputation of others.
The UAE courts have observed that criticism is allowed when it aims to provide an opinion on a specific matter without adversely affecting the person himself involved in a matter in a personal hateful manner with the aim of defaming him or adversely affecting his dignity. When giving constructive criticism, one has to use the proper phrases and suitable words for the criticism and to be aware of the public interest, as criticism a tool for betterment of society, not for causing harm. This is the permissible limit for constructive criticism. If the criticism exceeds such limit, it will constitute a crime (Dubai Court of Cassation judgment 1028 of 2019 dated 23 December 2019).
Article 43 (1) of the Cybercrimes Law addresses both acts of insults and defamation. The Article provides that whoever uses the internet or electronic systems to insult or defame another shall face a penalty of imprisonment and/or a fine of not less than two hundred fifty thousand dirhams (AED 250,000) or more than five hundred thousand dirhams (AED 500,000).
Facts of the case
In a recent criminal case, the offender/accused posted a bad review online against the victim and the company he represents. Whilst online reviews are allowed, reviews are meant to share constructive criticism that benefit the public. However, the offender disparaged the victim in derogatory terms accusing him in the review of being “rude when dealing with people”, an “awful and unprofessional person” and allegedly shouting at his staff.
As a result, the victim filed a criminal complaint against the author of the review. The accused was arrested and had his laptop and mobile phone seized. He confessed to posting negative statements about the victim online. The Public Prosecution issued an indictment order, and the matter was referred to the Criminal Court of First Instance.
Judgment of the Court of First Instance
The accused did not attend the court hearings and accordingly, the Court of First Instance issued a judgment in absentia in which it convicted him for committing defamation and imposed a penalty of a fine.
The Court of First Instance held that the accused’s statements, which the accused confessed before the public prosecution to making, as derogatory. Accordingly, the Court of First Instance concluded that the elements of the crime were satisfied and issued its judgment to convict the accused.
This judgment highlights how criminal intent can be established against the perpetrator of an insult or defamation and how, in this case, the statements were considered offensive in their characterisation of the victim.
The accused was sentenced pursuant to Article 212 of the Criminal Procedure Law and Articles 1, 43(1), 56 of Federal Decree-Law No. 34 of 2021 on Combatting Rumours and Cybercrime.
For further information,
please contact Omar Khodeir.
Published in May 2023