Cameron Crawford, senior partner at Indigo Media and Entertainment Lawyers, examines the implications of a social media ‘code of conduct’ for businesses across the Middle East region.
The Genie is out of the bottle: the public of the UAE and wider MENA region have embraced social media, mobile apps and digital content platforms with gusto.
Compelling statistics regarding Saudi YouTube consumption and UAE venture capital investment funding indicate that this trend is set to continue. However, as in many jurisdictions, in the UAE the law lags behind technological advancement.
Licensing a limited number of publishers and advance vetting of publications may well have been a sensible approach to content regulation when print publishing reigned supreme, but now 400,000 ‘publishers’ tweet over 2.5m ‘publications’ per day in the UAE on Twitter alone. Systematic control over the flow of information is no longer feasible, with the tools available to authorities worldwide either too blunt (such as locking sites), or retrospective disciplinary measures.
Despite this, current legislation (being the 1980 Print and Publications Act) remains primarily focused on issues relevant to print media, with an emphasis on the importance of editorial control and the licensing of fixed assets such as printing presses. For some time, government sources in the United Arab Emirates have indicated that a review of this law has been ongoing, but so far the outcome of this process has yet to be made public or promulgated into substantive law.
During this period, the UAE’s regulators have sought to address the specific issues posed by universal internet access. For example, the Telecommunications Regulatory Authority’s Internet Access Management policy blocks online content deemed inappropriate for consumption in the UAE, relying to a large extent on reporting by members of the public to identify issues.
Using the public as a check on content generation makes sense given the volume of content generated. This mirrors not only regulatory bodies such as the UK’s OFCOM, but also the way in which social media platforms such as YouTube and Facebook identify abuse. However, for this system to work optimally, public complaints should be evaluated against officially approved standards. In the absence of such objective measures, the question remains: under UAE law, what is inappropriate content?
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To provide benchmarks on content acceptability, certain free zones have sought to develop their own content guidelines: the Media Zone — Abu Dhabi and TECOM in particular have a content codes available for businesses operating in their respective free zones to refer to. However, it should be noted that these codes are not substantive legislation: compliance is therefore not necessarily compliance with the law, and may be viewed as only one factor in an approach to risk management rather than a watertight defence against legal proceedings.
The result of a lack of certainty as to what is permissible under the legislative regime and regulatory framework is a self-regulating industry. Whilst this may seem to have the virtue of offering businesses a great deal of flexibility in how they present and edit content, in truth the result is a risk-averse industry, unsure of the precise nature of its duties of compliance. The consequences of failing to self-regulate correctly can be severe, impacting revenues and in extreme cases resulting in criminal proceedings, so the industry’s caution is understandable. Moreover, the lack of clarity as to compliance obligations and potential lack of consistency in applying the existing rules can be off-putting to businesses looking to expand into the region.
In truth, the UAE has a blossoming digital media industry, helped in part by public investment and a largely pro-business approach by the relevant public authorities and regulators. This positive trajectory can only be enhanced by a solid regulatory framework, with the law providing the underlying principles, which are then clarified and updated by the courts and by regulatory bodies such as the TRA and NMC, who would also be empowered to use their expertise to take into account the nuances of UAE culture and the needs of the entertainment sector. The development of precedent would also be extremely helpful, enabling content producers and their advisors to make reasoned decisions, rather than relying upon speculative assumptions.
It will be interesting to see the form any new legislation takes: there will plenty of discussion on social media — and in print publications — whatever the outcome.