In its judgment 950 of 2019, the Union Supreme Court considered the meaning of Article 21 of Decree-Law No. 5 of 2012 on combatting Cybercrime.
Omar KhodeirSenior Associate,Litigation
In its judgment 950 of 2019, the Union Supreme Court considered the meaning of Article 21 of Decree-Law No. 5 of 2012 on combatting Cybercrime (“Cybercrimes Law”). Article 21 provides that the use of a computer network or an electronic information system or any information technology means for the invasion of privacy of another person, in other than the cases allowed by the law, shall be punishable by imprisonment for a period not less than six months and a fine. The judgment clarified one exception permitted by law which will be discussed below. It is important to note that since the issuance of this judgment, Law 5 of 2012 was replaced by Law No 34 of 2021 concerning the Combat of Rumours and Cybercrimes (the New Law). The new law contains similar provisions prohibiting the invasion of privacy. As such, one may expect reliance on this judgment when interpreting those provisions relating to the invasion of privacy.
An individual recorded videos of food products at a supermarket, which he believed to be contaminated, and uploaded and sent them to the competent UAE municipality in order for the municipality to take the appropriate action to seize the products, with an aim of warning the public.
The corporate owner of the supermarket filed a criminal complaint against the individual. The complaint relied on Article 21 of the Cybercrimes Law, which as noted earlier, penalizes the invasion of privacy using electronic means. Amongst other actions, this article prohibits the act of recording videos of others and publishing them without consent. The Public Prosecution office issued an indictment order and referred the matter to the Criminal Court in reliance on those charges.
The Court of First Instance issued a judgment in which it acquitted the individual of all charges.
The Public Prosecution appealed to the Court of Appeal, who decided to overturn the first instance judgment and issued judgment to convict the individual, issue a fine, and confiscate his mobile phone.
The individual appealed the judgment before the Union Supreme Court. He argued that the judgment of the Court of Appeal had errors in its reasoning when it convicted him of the offence of invasion of privacy without analysing whether the elements of the crime were satisfied. He submitted that the act of filming perishable products on display at the store was carried out with the intent of notifying the UAE official authorities overseeing food safety and for public awareness, which is a right afforded to him by law. He also asserted that he lacked any criminal intent of bad faith.
The Union Supreme Court granted the individual’s appeal and overturned his conviction.
An English translation of the Court’s reasoning stated that:
“It is settled in the Union Supreme Court that while the trial court has the discretion to decide on crimes and determine the accused’s relation and extent of involvement in relation to the same, however this is conditioned to rely on the correct picture and reveal the truth with all its elements that are being presented to the court. The court must also explore whether the elements of the crime, including the criminal intent, are satisfied and cite evidence of its existence against the accused party.
It is settled law, according to Article 21(2), (3) and 41 of Decree-Law No. 5 of 2012 on Combatting Cybercrimes that: “Using a computer network or an electronic information system or any information technology means for the invasion of privacy of another person, in other than the cases allowed by the law, shall be punishable by….”. Also as Article 54 of the Penal Code provides that: “There shall be no crime if the act is done in the performance of a duty mandated by Islamic Shariah or the law if the person by whom the act is done is legally authorized thereto.”
In other words, the Union Supreme Court judgment noted that the legal test for the offence of invasion of privacy, in such circumstances, involves determining whether the user of the information network acted in bad faith with intent to harm the reputation of others through the publication of the electronic material.
If, on the other hand, he published the material in the belief that he was doing so in the performance of a duty mandated by law, such as averting a wrongful deed or blocking the pretexts for harmful action against the person or property of another or in the belief that he is carrying out a legal duty, such as reporting a crime or preserving evidence that is likely to disappear (as a means of assisting the authorities in carrying out their duties), then he is not acting in bad faith.
The requirement of criminal intent under Article 21 of the Cybercrimes Law was not satisfied in this case. The individual reported the matter to the municipality and sent the video based on his belief that he was carrying out a duty under the law. Notifying the official authorities did not constitute an invasion of privacy in this context. Consequently, one of the elements of the crime was not satisfied and the individual could not be convicted.
As mentioned above, the Cybercrimes Law is no longer in effect as of January 2022. The Federal Decree -by -Law No. 34 of 2021 concerning the Combat of Rumours and Cybercrimes came into force in January 2022. The New Law’s provisions prohibiting the invasion of privacy are similar to the old law. As such, one may expect reliance on this judgment when interpreting those similar provisions. Whilst previous judgments are highly persuasive, they are not considered precedents given that the UAE is a civil law jurisdiction and there is no system of binding precedent.
For further information, please contact Omar Khodeir.
Published in August 2022
