<p>Depending on the role that we are fulfilling at the time, our use of  Social Media can have different effects and repercussions. In this  article, Part 1 of two-part series, we look at some general risks  associated with the use of Social Media. Some of these are of broad  relevance to all users of Social Media. Some are of particular relevance  in a corporate environment, including use of Social Media on behalf of a  company and use and misuse of Social Media by employees inside and  outside company time.&nbsp;</p>
<p>In next month&rsquo;s Law Update, Gordon Barr, a Senior Associate in our  Employment team, will outline some of the employment-related issues  arising in respect of Social Media. The increasing accessibility of  consumer electronics and the internet has meant that Social Media is  becoming as common place as emails. According to the Arab Media Outlook  report prepared by Deloitte in 2012, 86% of internet users in the Middle  East use Social Media to access news, information advice, and 70% of  users voice their opinions on Social Media sites.&nbsp;</p>
<p>Businesses are increasingly using Social Media as a business tool for  internal communications, marketing and public relations. The rapid  proliferation of Social Media in a corporate environment brings with it a  variety of issues. News stories about Social Media blunders abound.  These range from reports about Social Media misconduct by employees,  errors in the way in which companies try to engage with their customers  via Social Media, mismanagement of employees&rsquo; use of Social Media, and a  range of other problematic scenarios.&nbsp;&nbsp;</p>
<p>Broadly speaking, the key legal issues arising out of use of Social  Media relate to offensive content and privacy and confidentiality.&nbsp;</p>
<p><strong>OFFENSIVE CONTENT</strong></p>
<p>The UAE Penal Code prohibits:</p>
<ul>
<li>making, through any means of publicity, a false accusation which  dishonours or discredits a man in the estimate of the public, without  imputing any specific incident to him; and&nbsp;</li>
<li>charging, through any means of publicity, another person with an  incident susceptible of making him subject to punishment or exposing him  to public hatred or contempt.&nbsp;</li>
</ul>
<p>The publication of such statements is considered to be an aggravating  factor. The Cyber Crimes Law 2012, which replaced the Cyber Crimes Law  2006, contains a provision that basically mirrors this provision,  confirming that defamatory statements published via Social Media are no  less subject to sanction.</p>
<p>The Publications and Publishing Law 1980 is also relevant. Coming  into force well before the rise of Social Media, it is no surprise that  much of the language of the law is focussed on printing presses and  newspaper distribution. Despite this, the language relating to  materials, the publication of which is prohibited, is broader &ndash; and  likely to extend to publication in the context of Social Media. Examples  of prohibited publications include:&nbsp;</p>
<ul>
<li>Any work instigating against Islam or the values of society, the  system of ruling, or that harms the interest of the state; news that  harms the national economy or currency; and opinions that violate public  order or that circulate subversive ideas; and</li>
<li>News, pictures, comments about an individual&rsquo;s private life meant to  disgrace such individual, or any secret that may cause harm to the  reputation of someone, his property, or his commercial name.</li>
</ul>
<p>The Cyber Crimes Law also identifies a range of content, the on-line  publication of which is prohibited. This includes content that  blackmails or threatens a person, content that offends religious  sanctities and encourages sins, content that insults others or makes  them the subject of contempt, and content that criticizes the State or  that calls for donations or demonstrations without a licence.</p>
<p>There are a number of examples in the UAE of instances that appear to  fall within prohibitions set out in one or more of these laws.&nbsp;&nbsp;</p>
<ul>
<li>In February 2012 the Dubai Police chief pursued a defamation case  against a 42-year-old Emirati, alleging the man had defamed him on  Twitter with unfounded accusations of corruption and injustice.&nbsp;</li>
<li>In May 2012, a man who posted images insulting Islam on Facebook was  prosecuted after members of the public complained about the posts.&nbsp;</li>
<li>In June 2012, a gymnasium caused controversy with its Social Media  based advertising campaign, which included an image of an obese woman  making offensive gestures at a fast food restaurant.</li>
</ul>
<p>With regard to the latter example, we are not aware of any  prosecution arising. Despite this, a local newspaper reported that the  so called &lsquo;Middle Finger Campaign&rsquo;, which offered a week of free  training to tackle the &ldquo;obesity epidemic&rdquo; in Dubai, caused outrage on  Social Media websites. Noting anecdotally that this type of gesture  often forms the basis for a prosecution in the UAE in the context of  altercations between drivers, there is scope to conclude that the use of  such a photograph may breach the prohibition in the Publications and  Publishing Law on advertisements that include expressions or pictures  that are inconsistent with public conduct.&nbsp;&nbsp;</p>
<p>The point with all these examples is essentially that the fact that  the abusive or defamatory conduct has occurred on Social Media does not  make the conduct any less offensive or defamatory - or any less  vulnerable to prosecution under UAE law.&nbsp;</p>
<p><strong>PRIVACY AND CONFIDENTIALITY</strong></p>
<p>The Penal Code provides a punishment of confinement and fine shall be  inflicted on any person who attacks the sanctity of individuals&rsquo;  private or family life by publishing, through any means of publicity,  news, pictures or comments pertaining to the secrets of people&rsquo;s private  or familial lives even if the same is true. The Cyber Crimes Law  contains a provision that mirrors this Penal Code provision, confirming  that infringing privacy by way of Social Media is no less subject to  sanction.</p>
<p>In the UAE, there have been a number of cases involving the  disclosure of secret information via Social Media. Articles telling of  jilted lovers circulating compromising photographs via Social Media seem  to be a regular feature in local newspapers.</p>
<p>In a commercial context, the example of a bank using Facebook to  approach a UAE-based customer regarding outstanding loans is an example  of what not to do.&nbsp; A local newspaper reported that the customer learned  of the bank&rsquo;s approach when his daughter emailed him to ask why the  bank had posted details of his outstanding loans on his Facebook wall,  threatening to lodge a case against him for non-payment. While the  newspaper&rsquo;s discussion was focussed on the threatening conduct of the  bank&rsquo;s debt collection agency, our view is that there is a high  possibility that communicating with a customer, via a non-private Social  Media forum, about something as sensitive as bad debts, runs a high  risk of breaching the Penal Code prohibition on the disclosure of  secrets.</p>
<p>Besides the issue of privacy outlined above, the use of Social Media  in a corporate environment raises a number of other  confidentiality-related issues. From an operational perspective, an  employee&rsquo;s use of Social Media &ndash; either for work or in a personal  capacity - could result in the disclosure of information that would be  best kept confidential to the company.&nbsp;</p>
<p><strong>USER GENERATED CONTENT</strong></p>
<p>Many companies have adopted Social Media as a way of engaging with  customers, allowing people to post comments directly onto corporate  websites or Social Media sites. A simple example in a Social Media  context would be comments made by customers on the Facebook page of a  company. While allowing such User Generated Content may be an effective  way of engaging with customers, it is not without risk.&nbsp;</p>
<p>In the UAE, there is some likelihood that User Generated Content that  was offensive or breached privacy could attract liability both for the  individual posting it and for the company that failed to act promptly in  taking it down. For this reason, we recommend that any company that  wishes to engage with customers via Social Media in this manner moderate  User Generated Content &ndash; or, at least, act promptly the moment  offending User Generated Content comes to the company&rsquo;s attention. Our  view in this regard is supported by a new provision in the Cyber Crimes  Law, which - broadly speaking - provides for the site operator&rsquo;s  liability for offending content. Provisions of the Publications and  Publishing Law also support this view.&nbsp;&nbsp;</p>
<p><strong>USE OF THIRD PARTY SOCIAL MEDIA SERVICE PROVIDERS</strong></p>
<p>The use of third party service providers for the management of Social  Media content is another area of risk. Many of the points identified  earlier will be applicable, including making sure that offending content  is not posted &ndash; or not permitted to remain.&nbsp;</p>
<p>A key consideration when it comes to engaging a Social Media  consultant is to appreciate that the industry is at a very early stage  of development, so there will be varying expectations and varying  degrees of professionalism. In this context, we recommend ensuring that  arrangements with service providers are clearly set out in a suitable  services agreement, specifying the scope of work, the service level  expectations, and &ndash; ideally &ndash; some mechanism for addressing  non-compliance with service levels.&nbsp;</p>
<p>Having said that, it is important to appreciate the limitations of  service level credit type mechanisms when working with Social Media. If  the end result of a Social Media &lsquo;fail&rsquo; is that your reputation is  damaged, then service level credits may be of little consolation.</p>
<p>Al Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications  team regularly advises on Social Media related issues. For any queries  regarding this article, or Social Media issues in general, please  contact Nick O&rsquo;Connell &ndash; n.oconnell@tamimi.com</p>