ABU DHABI // When it comes to media freedom, the UAE sometimes gets what can fairly be described as a bad press.
In the most recent World Press Freedom Index, Reporters Without Borders ranked the country 118th out of 180 nations, beneath the likes of Tajikistan and Uganda.
Yet for all the concerns that have been highlighted, press freedom is anything but a taboo subject, having been the focus of vigorous debate in the media and the Federal National Council for a number of years.
One of the most widely discussed issues is whether journalists can be jailed for their work. While the laws indicate journalists are at risk of imprisonment if they break the law, the country’s leaders have indicated that this is not the case.
More than five years ago, in 2009, the FNC voted in favour of legislation that would have ensured the penal code was in line with the instructions of the leadership by replacing the decades-old law that allowed for the jailing of journalists.
But that legislation has yet to become law, and although senior officials have said a new law is planned, for the moment there remains confusion over whether journalists are at risk of imprisonment for doing their jobs, according to one media specialist.
“I don’t think the public understands, or that there’s enough clarity. I think, or at least I expect, this issue will be addressed in future regulations or clarifications,” said Dr Abeer Al Najjar, an academic who specialises in mass communication. The apparent ambiguity rests partly with legislation from 1980, the Press and Publications Law, which lists 16 types of material that cannot be published.
These include military secrets and criticism of the leadership. Article 86 of the Penal Code states that jail terms of between one month and two years can be imposed on journalists who break the law.
However, in 2007, after two Khaleej Times journalists were given two-month jail terms for libelling an Iranian woman, the leadership moved to ensure journalists would no longer be put behind bars.
As the state news agency, Wam, reported at the time, Sheikh Mohammed bin Rashid, Vice President of the UAE and Ruler of Dubai, “issued a directive on September 25 to the relevant authorities not to detain any journalist because of his journalistic work”.
According to Wam, Sheikh Mohammed said other punishments could be imposed instead for breaches of the law. Indeed, as well as, or instead of, jail terms, the Press and Publications Law allows for fines of between Dh1,000 and Dh10,000.
In an interview later that year with CNN, Sheikh Mohammed highlighted the freedoms he said journalists enjoyed.
“As long as [media] don’t say something wrong about a person or whatever it is, they can say whatever they want.
“As long as you don’t step on somebody else, then you are free to do what you like,” he said.
The move to end the jailing of journalists was welcomed at the time by the UAE Journalists’ Association and some foreign observers, among them Aidan White, then general secretary of the International Federation of Journalists. He said he hoped “the UAE will serve as a model in the region and that other countries will follow suit”.
As well as saying journalists should not be jailed, Sheikh Mohammed also asked the Cabinet to redouble efforts to produce a new Press and Publications Law.
Because the resulting legislation has not passed in to law, despite being passed by the FNC in 2009, journalists could be seen as operating in a grey area, because the 1980 law remains in force and is inconsistent with Sheikh Mohammed’s instructions.
One UAE lawyer said that although Sheikh Mohammed’s 2007 instruction is not thought to have a formal legal status, in reality it would probably override the 1980 law’s provision for jailing journalists.
“In practice, a court would be unlikely to issue a penalty of imprisonment,” the lawyer said.
Given the disparity between the letter of the law and legal practice, some media and political observers believe it would be beneficial if there were legislation to back up Sheikh Mohammed’s instructions.
“As much as Sheikh Mohammed’s instruction is more important than any law, the law should decide whether a journalist deserves to be jailed or not to be jailed. The law should have the final say on all of this,” said Dr Abdulkhaleq Abdulla, an Emirati professor of political science, author and commentator.
“When you have somebody as important as Sheikh Mohammed saying no jail for journalists … that’s quite an instruction coming from the highest leadership of the land. If he’s willing to [remove] jail as a punishment, I think the law of the land should live up to this high expectation.”
Dr Al Najjar would likewise welcome a new law that made it clear journalists would not be jailed.
“Since Sheikh Mohammed suggested there shouldn’t be any imprisonment for journalists, many people will feel the appropriate regulations should be taking place or taking shape in the near future,” she said.
However, concern has been expressed by others about the risks of a media free-for-all. In particular, some FNC members have indicated that rapid technological and other change, including greater openness in the media, could dilute the nation’s character.
With respect to the press, everything is allowed unless the law says otherwise. The 1971 constitution says that freedom of expression, including written expression, “is guaranteed within the limits of the law”, apparently giving journalists free rein outside of legal restrictions such as the 1980 act’s prohibitions.
Other examples of these prohibitions include disparaging the heads of other Islamic, Arab or friendly states, or abusing Islam or the system of power.
It is also illegal to give “abusive” information about an individual’s private life, even if true, damaging the currency or “stirring confusion” about the economy.
As well as individual journalists, newspapers and magazines are also liable to be punished, with courts having – and sometimes exercising – the power to impose a publication ban of up to two months, while a one-year ban can be ordered by the Cabinet. Breaches of certain prohibitions can result in copies of a newspaper being seized and possibly confiscated.
Aside from the ambiguities centred on the 1980 law, media analysts say the status of journalists is complicated further by the fact that other legislation also regulates journalistic activity.
“The problem with journalism practices is that so many different laws are at work … because it’s a public enterprise. So journalists are legally accountable under different laws,” said Dr Al Najjar.
“We can say that in different circumstances there’s the antiterrorism law, the penal code, the cybercrime law.”
Six years after issuing a cybercrime decree to take account of the rise of blogs and social media such as Twitter and Facebook, in 2012 the UAE implemented a full cybercrime law, which includes the threat of a minimum three-year jail sentence for anyone setting up or operating websites that damage the reputation of the country or its rulers. Jail terms can also be imposed on individuals making calls online for protests without a licence.
The UAE lawyer said the cybercrime law “covered a whole raft of things I would imagine journalists could stumble into.
“For example, online information that would stir sedition, sectarianism, hurt national unity, exposing state interests to danger and [threatening] public order, harming the interests of the state and its national unity – these are all taken from provisions in the cybercrime law. Some of it is pretty broad.”
Because Sheikh Mohammed’s 2007 comments predate the cybercrime law, the lawyer said it was unclear if the instructions not to jail journalists applied to prosecutions under this legislation.
“There’s plenty of scope to stay if it’s a prosecution under the cybercrime law it maybe trumps Sheikh Mohammed’s earlier comment.”
Despite the complex issues governing journalism in the UAE, one of the country’s most senior media officials, Ibrahim Al Abed, director general of the National Media Council, said it remains the case that journalists cannot be jailed for their work.
“Sheikh Mohammed announced that no journalist can be put in jail because of what he writes. If he kills somebody, that’s something else,” said Mr Al Abed, who also heads Wam and the Department of External Information.
In recent years, a number of journalists have been arrested and detained by the authorities, had their passports confiscated or not had their visas renewed. Those detentions reported by local media, among them cases that have raised concerns among media freedom organisations such as Reporters Without Borders, appear however not to have been for reasons directly related to journalism. Some arrests have been over alleged support for the Muslim Brotherhood, designated a terrorist organisation.
In perhaps a closer parallel to the case of the two journalists jailed for defaming an Iranian woman, in 2009 a western journalist previously employed on an English-language newspaper had his passport confiscated after being accused of defamation in a blog post he was said to have written. The journalist denied writing the post and after a legal battle lasting nearly two years was cleared of all charges. Although the subject of whether journalists can be jailed or not has been discussed often, it arises rarely, the UAE lawyer said, because publications are careful to ensure they do not breach restrictions.
“Media outlets do manage their own content production so they don’t find themselves in difficult situations,” he said.
“This managing of content production could result in media holding themselves to a higher standard than what’s required by the law.”
Similarly, Dr Abdulla sees “a lot of self-censorship”, while organisations such as the UAE Journalists Association have in the past discussed issues such as the lack of responsiveness of some organisations to media enquiries.
While the way the authorities deal with the media, and how the media itself operates, has sometimes sparked concern internationally and domestically, the country is far from unique in having a legal system that can limit the work of journalists. Indeed, there are many instances in other countries, including a number of Asian or western democracies, where journalists have faced arrest, prosecution and jail.
For example, in November last year the editor of a Thai news website was given a four-and-a-half year jail sentence for publishing an article in 2009 that defamed the king.
The Committee to Protect Journalists said the sentence indicated “the severe deterioration of press freedom” in Thailand.
With journalists facing challenges in many countries, overall the press in the UAE is said by senior officials to have more freedom than legislation suggests.
In 2013, while indicating that new media legislation was in the pipeline, Sheikh Abdullah bin Zayed, the Minister of Foreign Affairs and chairman of the National Media Council, suggested that a Freedom House ranking that placed the UAE 158th out of 196 countries in terms of press freedom was not an accurate reflection of reality.
“This ranking is based on the law, not practice,” he said.
newsdesk@thenational.ae