New UAE Cybercrime Law – Webmaster Liability

UAE passed a new cybercrime law that has been criticised for its apparent attempt to restrict freedom of expression, but this law also happens to introduce a new mechanism to limit the liability of webmasters for content published by third parties.

The first cybercrime law in UAE was passed in 2006 which criminalised a lot of acts on the Internet relating to fraud and the misuse of technology. The new law that was passed early this month introduced many new offences that relate to the use of technology to organise unauthorised protests, receive unauthorised donations, attempt to overthrow the government, and mock the rulers of UAE. The new law also provides for many other general offences such as those relating to terrorism, violation of privacy, and the trafficking of drugs or persons.

The reaction to the new law has been mostly negative as many see it as an attempt to restrict the freedom of expression in the UAE to a new level. I believe that these claims are exaggerated because the new law did not in reality add any new offences in relation to freedom of expression that did not already exist in a general form in other legislations in UAE. For example, attempting to overthrow the government has always been an offence in UAE whether technology was used in that attempt or not. The new law is merely a confirmation of existing principles.

On the other hand, a new interesting feature of the new UAE law which has not yet been highlighted is a provision specifying that a webmaster will be liable for any illegal content that he is aware of on his website. However, if the webmaster is not aware of such content, he would be liable for it only if he does not remove that content upon receiving a notification from the authorities informing him of the illegality of that content.

This is a good step for providing webmasters, such as owners of forums and bloggers, with some comfort that they will not be held responsible for the comments published by users of their website. The authorities previously had an expectation that a webmaster should be held liable for every single comment posted on his website, whether or not made by him, as he is the owner of the website and is in a position to moderate these comments.

This was an unrealistic approach because moderators of popular websites cannot practically pre-approve every single comment published on their website and it is unreasonable to expect a webmaster to be able to make a legal assessment of the content published by others on his website to decide whether or not that content violates any law.

The fact that a webmaster will not be held liable for content he is not aware of will of course not change his liability for any content that he publishes himself regardless of whether or not he knows that this content was illegal. The provision also does not change the position of the liability of the person who posts illegal content on the website of another person. The webmaster of a website will also be reasonably expected to assist the authorities in identifying the offending person upon receiving such an order from a competent authority.

This new provision is a great improvement for webmasters, but it is still far from perfect as the authorities can abuse this system to order a webmaster to remove any content from his website which may not necessarily be illegal, and the webmaster is likely to abide by their notice to escape any potential liability.

Even with the opportunity of abuse, this new addition is better than the current position in many other Gulf countries, including Oman, where the law seems to suggest that a webmaster is strictly liable for all content on his website whether or not he was aware of it.

Omani Website Blocked As Public Prosecution Investigates Defamation Case

Popular Arabic Omani discussion board Al Al Harahhas been blocked for the past week or so upon the order of the Public Prosecution in response to Al Hara’s failure to provide the Public Prosecution with the IP details of a member who has posted defamatory material of a number of individuals in the past.

I am not aware of the specifics of the content that was posted on Al Harah, but Omani newspaper Al Zaman has claimed that this content is of a political nature and that is why Al Harah has been blocked, the Public Prosecution came out with a Press Release today claiming that the matter is exclusively based on a criminal incident that with no political aspect.

It seems that the Public Prosecution has directly communicated with the administrators of Al Harah asking them to disclose the IP details of the person who posted the offensive material. Al Harah claims that it does not have the IP details of that person due to the fact that the software they use retains IP details for a certain period of time only after which they get deleted. Al Haram claims that it tried helping the Public Prosecution in reaching this person by sending a private message to him through their forum, but he has not responded.

According to the Public Prosecution the webmaster is under an obligation to provide them with all the details they want as Article 27 of the Criminal Procedure Law provides that anyone asked by the officers of a judicial capacity as part of their duties to help in capturing suspects to preventing their escape must provide that help.

The Public Prosecution claims that it could not identify the actual person who runs Al Harah website and the administrators of the website have refused to provide these details to the Public Prosecution and apparently that is why a judicial order was made to temporarily block the website until all the necessary information are provided.

The Public Prosecution is stating that any person who has suffered damage from this decision may complain to the competent court.

It is worth noting that the WHOIS records of Al Harah are protected, so the details of the domain name registrant are not public.

I am not sure to what extent Al Harah has cooperated with the Public Prosecution before the decision was made to ban the website, but I am not sure how banning the website can help in the disclosure of the real owner of the website or the IP details of those who posted the defamatory content. I am not an expert on criminal procedures, but this cannot be said to protect the evidence as the website can still be accessed or deleted completely from the central control panel of the hosting service provider – let alone using proxies, vpns, or even just going as close the UAE to access the website.

I think that it is important for web masters to watch this case closely to see to what extent they have to cooperate with the Public Prosecution before they are held liable for the content published by someone else.

Omani Freedom of Expression Online

The internet has enabled a lot of people from all around the world to communicate with others and has provided a platform for those without a voice to speak up and reach out for an international audience without any physical restriction, and just as much as it has brought the best of people in terms of creativity and innovation, it has also brought the worst of people as it enabled them to talk freely under the cape of anonymity.

I do not think that I am the only one who said some really strange things to people online which I will never dream of saying to their faces in real life. A visit to any public discussion board on the internet would show you how much people swear at others, make fun of them, and even maybe harass them. Many people forget that there are human beings behinds these nicknames with feelings that could get hurt.

The concept of freedom of expression is pretty new to the traditionally conservative Omani society, and the sudden explosion of opportunities opened by the web led some to assume that freedom of expression means that they have the right to say whatever they want, just because they can, without thinking about the consequences, but the truth is that there is nowhere in the world where freedom of speech is an unlimited right, because no matter what personal right a person has, it must not infringe on the rights of others.
In Oman, and many other countries, this right is restricted by some other legal principles such as defamation and breach of confidence. Defamation is generally defined as the act of spreading false information about a person which could harm that person’s reputation. This law is much stricter in Oman than in some other places like the UK or the USA as defamation is a criminal act and not merely a civil matter. In addition to this, there is no clear requirement in the law for the statement to be false for it to be offensive but merely requires it to have the consequence of damaging that person’s reputation.

Freedom of expression is further restricted by the law of the breach of confidence, if a person receives any information with a clear expectation to keep that information in confidence, that person would be under a legal duty not to disclose that information to anyone else. This is a general principle that applies to all sorts of information whether it was a private issue told between friends or a serious confidential document delivered in a professional capacity, for example, the medical records of a patient.

These two are examples of the most obvious restrictions to freedom of expression on the internet or otherwise, but are not the only ones, in Oman, the Telecommunication Law also provides for a number of other restrictions such as prohibiting the transmission of harmful and untruthful messages through any means of communication.

The perception of the internet as an unregulated medium that allows people to say anything they want is far from true, the legal system covers a wide number of instances where speech on the internet could be punishable, and with the development of new methods for tracking the visitors of a website, it becomes not too difficult to enforce these laws on the internet.

This post was originally published as a column on Muscat Daily.

Ali Al Zuwaidi’s Trial Outcome

Ali Al Zuwaidis Trial
(Baby photo credits: utpal)

Earlier today the court issued its ruling on the two cases of Ali Al Zuwaidi. The first case involved a defamation claim made by the CEO of OmanMobile  for content published on Omania2.net – an online discussion board which Al Zuwaidi moderated. Posting on various forums report that the court held that Al Zuwaidi is not guilty of the offenses of Article 61(4) of the Telecom Act. This Article specifies that a forum moderator is to be held responsible for content written by third parties on his forum if that content is contrary to public order.

It is unknown how the court reached the conclusion that Al Zuwaidi is not to be held liable, did the judge concluded that the defamatory content in that post did not amount to material contrary to public order? was it because the content did not remain for a long period on the website, or was there another defence? We don’t know.

The second case involved the disclosure of a confidential government document by Ali Al Zuwaidy on the forum. Al Zuwaidi, who is a civil servant, acquired a document through the course of his employment and then published it on a number of Omani discussion boards. The document disclosed the government’s intention to have a popular radio show pre-recorded instead of airing it live to ensure it’s ability to censor anything on it if it wishes. The court held that Al Zuwaidi was guilty of an offense for leaking a confidential government document in accordance with Article 164 of the Criminal Law 7/74. Al Zuwaidi was sentenced for a 10 day imprisonment and the payment of a fine of RO 200 ($500).

The court held that the time served during the interrogation (11 days) is to be deducted from the prison sentence, so in practice Al Zuwaidi would be required to pay the fine.

As a civil servant, Al Zuwaidi job might also be terminated in accordance with Article 140 of the Civil Service Law for committing a criminal offense or an offense related to trust and honor.

The actual text of the judgement is expected to be available to the public in a period of two weeks.

The Booz Allen Defamation Trial in Progress

The Booz Allen Hamilton Case
(Baby photo credits: utpal)

An anonymous member called “Boozallen” published a post on Omania2.net defaming the CEO and CTO of Oman Mobile. The CEO complained to the Public Prosecution which took action under Section 61 of the Telecom Law to prosecute the administration of the website.

There are many interesting points in this case, but it is necessary to talk about the facts. On the 20th of August 2008, the offending post was written in English on Omania2.net, but as An Arabic forum, the moderator named Ali Al Zuwaidy temporarily deleted this post on the grounds that it was written in a foreign language, however, after receiving some messages from other members, he unlocked it and made the following post:

 
أخي الكريم..
قمت في المرة الأولى بغلق الموضوع بسبب الكتابة باللغة الانجليزية، لكن بعد مراجعة الأمر مع احد الأخوة قررت فتح الموضوع وابقائه مع دعوة أي شخص لترجمة الموضوع ليتسنى للجميع الاطلاع عليه…
 

Translation: Generous Brother, I initially locked the topic because the writing was in the English langauge, but after reviewing the issue with one of hte brothers I decided to open it and keep it while inviting any other person to translate the topic so that everyone can view it.

On the 21st of August, the administration of the website decided to remove the thread from the public because of their fear that it offended a website policy on not posting anything that might violate the ruling system of the country. 

The complaint by Oman Mobile was made after the thread was removed from the forum.

This case is interesting because it probably is the first one to be about a post written in the English language. All previous major cases were written in Arabic, the case is also intereseting because the identity of the original post author was not discovered, and because the action is made against a specific moderator and not the owner or main administrator of the website. The court made the decision to take an action again Ali Al Zuwaidi specifically because he responded to the thread and actively unlocked it after it he locked it before.

The case is currently in progress and the next hearing will be held on the 17th of March. 

I think that this is a classical case for which Section 61(4) was specifically introduced. Webmasters should be responsible for content published on their website, it is illogical to think that people could simply argue that the post was written by someone else one a  website when they actively maintain as commercial platform for people to post messages for which they have direct control over.  However, the law is unfair because it does not provide a defence for webmasters who take reasonable diligent action to remove defamatory content from their website, which you can argue was the case here as the post was allegedly removed within 24 hours – even though the moderator previously did make an active choice to allow that post on the forum.

If Ali Al Zuwaidi is found guilty he could be prisoned for a period up to a year and fined up to a 1000 Omani Rials. 

It is worth noting that the Public Prosecution issued a press release today reminding people that sending messages that offen the public order could lead to criminal sanctions. 

Will be looking forward to see how this case progresses.

Omani Forum Member Imprisoned for Defaming Policeman

Policeman Defamed by Forum Member
(Photo credits: Geff Rossi)

Omani Arabic newspaper “Azzamn” reported today a recent online defamation decision by the Elementary Court to imprison a person for posting on an  online discussion forum claiming that the victim, a policeman, tortured to death a theft suspect.

Medical evidence was used in the case to prove that the death of the deceased theft suspect was natural. It was also noted that the defendant had previous arguments with the victim as the brother of the defendant was held in the same centre for the same theft case for which the deceased theft suspect was being held. Azzamn says that the defendant wrote what he did to get back to the policeman who refused one of the visits to his brother.

The court held that the defendant was guilty for two offences, the first under section 173 of the Criminal Law for insulting an employee while carrying out his employment duties or insulting him on the basis of the performance of his employment duties. The second offence was made under section 182(2) for claiming that another person is guilty of a crime for which he knows he is innocent or for which he fabricated evidence for the creation of such crime. 

The court decided to sentence the defendant to a one-month imprisonment for the crime of false-incrimination under section 182(2) and 15-days for the crime of insult under section 173.

This is an interesting case because it shows us that there is more than one ground for establishing defamation, if what you post constitutes a false-incrimination under section 182 then you would be liable for an additional  penalty that is greater than the penalty for a regular insult.

Link to Azzamn Article (Half way through the page – Arabic only).
Link to another recent Omani online defamation case.

Recent Omani Web/Press Defamation Judgement

Newspaper Defamation
(Photo credits: birdfarm)

The Supreme Court in Oman recently confirmed the reversal of a judgement holding a newspaper reporter guilty of defamation for referring in an article he wrote on the newspaper to a website containing defamatory statements of a person. The decision of the Supreme Court was reported two days ago by Al Shabiba Newspaper here (available in Arabic only).

It is hard to know what the exact facts of the case are from the decision as the case was tried before the Elementary Court and the Court of Appeal before getting the Supreme Court. Apparently what happened was that a women was defamed on a website, then the reporter wrote an article on the newspaper criticising some websites that defame people. The reporter had to go to court because it was claimed that what he wrote also amounted to defamation.

I am not sure what the article exactly said, but the article mentioned (1) the name of the defamatory website and (2) that it was published on the website that an “unnamed” female chairman of a company reached her position because she had a sexual relationship with an ambassador. This story was cited in the article as an example of defamation going online.

The prosecution argued saying:

فقد قام المتهم خلال شبكة المعلومات في الجريدة تحت غطاء النقد لما ينشر من خلال شبكة المعلومات إلا أنه في حقيقة الأم قد قصد الإساءة إلى المجني عليها وليس أدل على ذلك من قيامه بالإفصاح عن اسم وبيانات الموقع الذي يسيء إلى المجني عليها ويطعن في سمعتها وشرفها وأنها قد وصلت على منصبها كرئيس لمجلس ……………. لارتباطها بعلاقة غير أخلاقية بالسفير الأمر الذي فتح الباب أمام الكافة وأثار فضولهم للدخول على الموقع المشار إليه والاطلاع على ما يمس شرف وكرامة المجني عليها وحياتها الخاصة

What the first defendant published under the cloak of criticism was intended to attack the victim. The proof of this was the fact that he disclosed the name and the details of the defamatory website and that she reached her position because of her sexual relationship with the ambassador. This made the public curious to go to the website to learn about the violation of the honour of the victim and her private life.

The court said that for the crime of defamation to take place two elements must be established, (1) statements of defamation, and (2) making these statements in public.

ما يتعين إثباته في حكم الإدانة بجريمة إهانة الكرامة أمران : أولهما عبارات الإهانة، وثانيهما علانية الإسناد

The court held that the article was not defamatory because it did not mention the name of the victim, it did contain anything insulting of her or anything descriptive of her personal life. It also said that the arguments provided by the prosecution were “unsavory, unacceptable, and without any legal basis” as the article “criticised these websites and demanded they stop defaming people”. The court concluded that the original judgement is to be reversed as no defamation took place.

While this might now seem obvious, it was not obvious to the Elementary Court as it held the newspaper reporter guilty of defamation. The Supreme Court only held that defamation did not take place because the article did not mention the name of the victim.

We can learn from this case that defamation can occur throughout a chain. The fact that you are reporting (or blogging) about an incident of defamation can easily make you liable for it as well if what you write can be considered as defamatory statements even if these statements did not necessarily originate from you and you are merely reporting current events.

Internet Defamation – Comparison Between British and Omani Law


(Photo credits: Assbach)

Defamation and insults are some of the most controversial issues on the Internet. Most people think that they have an absolute right of freedom of speech to say whatever they want, but the reality is that your freedom of speech is subject to several restrictions, one of which is the right of others not to be defamed or insulted without any justification.

The anonymous nature of the Internet makes it tempting to think that defamation rules do not apply to online speech because of the difficulty to enforcing the law, but as we have seen, that is not the case, and even in Oman, people were prosecuted, fined, and even jailed for defamation related offences.

If you run a blog, a forum, or a website, or if you post comments anywhere on the Internet you have to be aware of the possible consequences of what you write. I will try to explain the differences between the defamation law in the UK and Oman and the difference in liability limits of website owners in both countries.

First of all, defamation in the UK is a civil action while in Oman it is a criminal offence. This makes it worse in Oman because the penalties for it will be criminal penalties, while in the UK it is mostly a matter of payment of financial damages.

In the UK, defamation occurs when a person makes a statement about a person and that statement lowers the opinion of that person in the mind of right thinking members of society. Only living people can be defamed, and a person can defend himself if he can prove (a) that what he said is true, or (b) that what he said was an opinion/comment and not a statement of fact. This is governed by the Defamation Act 1996.

The concept of defamation in Oman is completely different because it is considered a criminal offence. A person will be guilty of an offence if he ‘insults the dignity of any person’ through a public act, speech, shouting, writings, drawings, photography, videography, or the use of any sign. There is no definition in the law of what an ‘insult’ to someone’s dignity means. It is possible for the relatives of an insulted person to complain, even if that person was dead. A defendant may have a defence if he can prove that the other person provocated the defendant or if both parties exchanged insults.

In addition to the basic insult offence, Omani law also creates an special offence for insulting an employee in his professional capacity so that a person commits an offence is he ‘insults an employee through the speech, public acts, or publication while the employee performs his job or on the basis of his job’. �Both forms of insults are�governed by the Criminal Law 7/74.

Both of the Omani and British law are subject to changing moral values as what ‘will constitute a degradation of opinion in the mind of right thinking people’ will vary from time to time as will an insult under the Omani law. However, under British law it is clear that the matter is not subjective to what the defamed person though, but what society thought of the issue, however, under Omani law it is not clear if an insult is a subjective or objective issue. I do not have access to cases or court decisions to identify how this issue is decided in Oman.

Now that you have an idea of what is defamatory or not, you might want to know for how of much of this will you be liable for online. If you are a blogger or a website owner, defamation can occur on you website via one of two methods, the first one is when you post defamatory content on your blog, the second is when you someone posts a defamatory comment (defaming a third party, not necessarily you) as a response to a post you wrote.

If you wrote the post yourself on your own blog or website, you will be held liable for it. It is something you wrote yourself and if that post can be linked to you as an individual then you are liable, under both British and Omani law. To escape liability, you should try to use a defence such as ‘justification’ under British law or ‘provocation’ under Omani law.

However, if somebody else wrote a comment on your blog, then there is a chance that you might be liable for it even if you did not write it yourself. British and Omani laws differ completely in how this treat this liability.

British law generally realises that at many times website owners are genuinely innocent and have no control over content written by other people. They also realise that increasing the risk of liability of website owners can stifle the pace of innovation. For this purpose, the Defamation Act provides a defence for website owners if they can satisfy the following:

  1. he was not the author, editor, or publisher of the statement complained of.
  2. he took reasonable care in relation to its publication.
  3. he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

Not all websites will be able to use this defence because only certain websites will be not considered publishers (websites that have no effective control over actions of their visitors). An easy example of the use of this defence would be in the case of a forum moderator, who cannot practicaly monitor each single post made by the members, however, he will only succeed if he shows that he took reasonable care and did not just leave the forum without any moderation. This will obviously depend largely on the facts.

The case in Oman is very different, first of all, there is no general defence for website owners in the Criminal Law, but the Telecommunication Law makes the website owners, managers, and supervisors responsible for any statement published on their website if they incite or agree to publish that if it is contrary to public order and morality (Article 61(4)). This is NOT the same as an insult under the Criminal Law, it is a different criminal offence that does not require a defamed person and has a very wide scope. There are no defences under this section, but the requirement for consent might save a website owner if the event when someone hacks his website and puts a defamatory statement on it. In that case he obviously did not consent to that statement.

This article was clearly introduced to hold website owners liable for the content written by anonymous people regardless of whether or not the web master knew about it or not. It makes sense for a website owner to be liable because he has control over the website, but the law does not provide any defence for innocent web masters and the law does not seem to care about stifling the development of local web content.

A very interesting development happened through the passing of the Electronic Transactions Law in Oman, this law provides websites that fall under the definition of a “Network Agent” with a defence found under Article 14 to protect the Network Agent against any criminal or civil liability arising out of information included in an electronic record if the Network Agent (1) did not know any facts which could indicate the liability of this record and (2) instantly removed this information from all his systems once he knows about the liability arising out of this information.

The definition of an electronic record is very wide as it includes a “contract, record or message”, the definition of a network agent includes any legal or natural person who provides any services related to an electronic transaction, and an ‘electronic transaction’ is any procedure or contract concluded or performed fully or partially through electronic messages’.

The purpose of the Electronic Transactions Law is to provide certainty and protection e-commerce. It is based on a couple of UNCITRAL model laws and was drafted with the help of international consultants who realise the importance of such protection for businesses to operate, unlike the Telecom Law which introduced Article 61(4) explicitly to conclusively hold website owners liable without any thought to the impact of this web culture.

However, the wide scope of the nature of the Electronic Transactions Law means that any website that has a commercial nature can be covered by it. Surely an advertisement is a service related to an electronic transaction. This can make any website monetized by advertisement capable of being considered as a network agent, and from there you can argue that you should be able to use the defences under the Article 14 claiming that you are not the source of content written by other people and you merely provided access to it.

The fact that the Electronic Transactions Law came after the Telecom Law means that in areas of conflict the newer law will apply, so it does not matter that the Telecom Law says something else.

This is relatively a long shot, it has not been tested by the court and I am creatively interpreting the law in attempt to establish a defence. The court might have a completely different opinion on the matter. We will not know how it will be interpreted until somebody actually gets sued.