(Beirut) – Wide-ranging legal changes introduced by the United Arab Emirates (UAE) in late 2021 fail to address the longstanding and systematic restrictions on citizens’ and residents’ civil and political rights, Human Rights Watch said today. The new laws maintain previous provisions and include new ones that pose grave threats to fundamental human rights.
As reported by the state news agency WAM in November, the legal changes include amendments to over 40 laws including on crime and punishment, cybercrimes, and drugs, aiming “to strengthen economic, investment and commercial opportunities, in addition to maximizing social stability, security and ensuring the rights of both individuals and institutions.” While the changes allow for a moderate broadening of personal freedoms, the new legal framework retains severe restrictions on the rights to free expression, association, and assembly.
“While the UAE government and its state-controlled media outlets trumpeted these new legislative changes as a massive step forward for economic and social freedoms, they will further entrench government-imposed repression,” said Michael Page, deputy Middle East director at Human Rights Watch. “The UAE government has chosen to squander an opportunity to improve freedoms across the board and instead has doubled down on repression.”
Human Rights Watch conducted a comprehensive legal analysis of two of the new laws, the crime and punishment law and the cybercrimes law, to identify any changes related to the rights to free expression and free assembly. Both laws went into effect in January 2022.
The laws continue to prohibit criticism of rulers and speech that is deemed to create or encourage social unrest, imposing severe penalties for vaguely defined charges. They maintain provisions that criminalize defamation and both verbal and written insults, whether published or made in private, as prosecutable offenses. New provisions criminalize “false” and “misleading” information, sharing information with foreign groups or countries, and “offending foreign states.” Protests and demonstrations would still be prohibited.
Since 2011, UAE authorities have carried out a sustained assault on freedom of expression and association, arresting and prosecuting scores of independent lawyers, judges, teachers, students, and activists, and shutting down key civil society associations and the offices of foreign organizations, effectively crushing any space for dissent.
Previous laws that severely suppress freedom of expression have often been used to stamp out dissent. Local news sites, many of them owned or controlled by the government, exercise self-censorship in accordance with government regulations and unofficial red lines. Since at least 2015, UAE authorities have ignored or denied requests for access to the country by United Nations experts, human rights researchers, and critical academics and journalists.
UAE authorities have also spied on international journalists, activists, and even world leaders using sophisticated Israeli and EU-produced spyware, or with the help of former US intelligence officials. Some of those whose communications and devices were targeted by the government surveillance and who are residents of the UAE, were subsequently arrested and abused in detention. Among them is the prominent Emirati human rights activist Ahmed Mansoor. A UAE court sentenced Mansoor to 10 years in prison in May 2018 following a grossly unfair trial, partly based on private email exchanges and WhatsApp conversations.
Abusive provisions in both the new penal code and the cybercrimes law violate the UAE’s Constitution and international standards, Human Rights Watch found. The UAE Constitution guarantees freedom of speech and of the press. These guarantees are also well established under international human rights law. The International Covenant on Civil and Political Rights (ICCPR) holds that “everyone shall have the right to freedom of expression…to seek, receive and impart information and ideas of all kinds.” While the UAE is not a party to the ICCPR, it constitutes an authoritative source and guideline reflecting international best practices.
The UAE is a state party to the Arab Charter on Human Rights, which also ensures the right to information, freedom of opinion and freedom of expression, and guarantees the right to freedom of political activity, the right to form and join associations, and the right to freedom of assembly and association.
Such vague laws invite self-serving interpretation by the government, and with courts that have proven compliant in harshly regulating speech, the result will be continued anxiety, self-censorship, and arbitrary enforcement of the law in the UAE.
The UAE authorities should take immediate steps to bring the penal code and cybercrime law into line with international and regional standards on free speech and individual freedoms, Human Rights Watch said. The UAE has not ratified the ICCPR, article 19 of which outlines the right to freedom of opinion and expression. But it is a state party to the Arab Charter on Human Rights. Article 32 of the Arab Charter ensures the right to information, freedom of opinion and freedom of expression, and article 24 guarantees the right to freedom of political activity, the right to form and join associations, and the right to freedom of assembly and association.
“The UAE cannot market itself as a reformist and tolerant state while introducing new laws that increase its already alarming levels of repression and censorship,” Page said.
Crime and Punishment Law (Penal Code)
The UAE’s new 2021 Federal Crime and Punishment Law came into force in January 2022. It retains many abusive provisions of the previous penal code and adds new restrictions or increases penalties for existing provisions. The new code contains 479 articles concerning crimes and offenses and their punishments, and in some instances is a step back from amendments made in 2020 to the older penal code that saw a greater easing of restrictions on individual freedoms.
The following are some of the major changes in the penal code that affect human rights:
The new law reintroduces and, in some places, adds to discriminatory provisions against women. The law reintroduced the criminalization of consensual extramarital sex, which had been dropped from the older law as part of the 2020 amendments. Under the 2021 law, if men and women have sex outside of marriage, the act carries a penalty of no less than six months’ imprisonment. Sodomy with an adult male is also criminalized under the law. In both cases, the offenses can only be prosecuted on the basis of a complaint by a husband or male guardian.
The law disproportionately affects women as it only allows men to complain about and forgive extramarital sex, and provides for only a minimum sentence allowing judges’ discretion to provide harsher sentences.
The 2021 law also criminalizes having a child outside of wedlock, punishable with no less than two years in prison for both the mother and the father. Previously pregnancy and children out of wedlock served as evidence of the crime of consensual extramarital sex, which remains a crime under the new law. However, they will not be prosecuted if the couple marry and register their child separately or together acknowledge the child and obtain a birth certificate and other official documents. The authorities also still make it difficult for unmarried pregnant women to access prenatal health care and register their children.
Other abusive provisions relating to social and cultural matters remain. The penal code continues to criminalize suicide, abortion, sorcery, blasphemy, and alcohol consumption in public places or unlicensed locations.
It continues to criminalize vague and overbroad acts that can be considered “scandalous,” that “offend modesty and public morals,” that “incite to a life of sin, or that “tempt another openly to sinfulness by any means.” This would allow the authorities to arrest people for a wide range of behaviors, including public displays of affection, gender nonconforming expressions, and campaigns promoting the rights of lesbian, gay, bisexual and transgender (LGBT) people.
Article 155 of the new penal code provides sentences of life imprisonment or the death penalty for anyone who “intentionally commits an act that compromises the sovereignty of the state or its independence, its unity or its territorial integrity.” An earlier version of this vaguely defined article provided sentences of up to life in prison for this violation.
Article 174, similar to a provision in the previous law, imposes sentences of up to life in prison for anyone who commits an act against a foreign country that “could harm political relations.” But it also adds a possible death sentence if the court determines that harm did occur. It also stipulates a minimum prison sentence of five years and a minimum fine of 100,000 UAE dirhams ($27,225) if the act takes place in “writing, speech, drawing or by statement or using any means of technology or through the media.” It does not provide for a maximum sentence in that case, meaning a person could still face life in prison or the death penalty if they are found by a UAE court to have “harmed” political relations with another country using technology or the media.
In October 2020, a UAE court sentenced a UAE resident, Ahmed Etoum, under the previous provision to 10 years in prison based entirely on peaceful Facebook posts criticizing Jordan’s royal family and government. The court convicted him for using Facebook to commit “acts against a foreign state” that could “damage political relations” with that state and “endanger national security” inside the UAE. The court never considered whether Etoum’s Facebook activity actually caused harm to Jordanian-Emirati relations or even attempted to show that it endangered national security.
Two new provisions may directly affect the work of journalists based in the UAE. Article 178 provides for sentences of 3 to 15 years in prison for anyone who, without a license from the appropriate authorities, collects “information, data, objects, documents, designs, statistics or anything else for the purpose of handing them over to a foreign country or group or organization or entity, whatever its name or form, or to someone who works in its interest.” This article may be used by authorities to punish anyone who shares information with international media outlets, independent human rights organizations, or United Nations human rights experts.
Article 217 criminalizes publishing or sharing “false or tendentious news, statements or rumours” and spreading “propaganda” that may “disturb public security or sow terror among people,” “damage the public interest,” or “incite public opinion.”
Defamation continues to be criminalized in the UAE under articles 425, 426, and 427 of the penal code, with palpable effects on media freedoms and even on private communications between individuals. These provisions provide for prison terms and/or fines for libel and slander, including when communicating on nonpublic applications such as WhatsApp.
Article 425 defines libel as any statements or comments made against a person that expose that person to punishment or contempt and provides a prison term of no less than two years or a fine of up to 20,000 dirhams ($5,400) for the offense. Article 426 provides for up to one year in prison or a fine of up to 20,000 dirhams for anyone who insults or slanders someone else’s “honor or reputation without referring to a specific fact.”
Both provisions include a higher penalty if the speech is directed at public officials or their family members, up to three years for libel and two years for slander. In both cases, it considers the publication of such statements and comments in newspapers or other printed materials an aggravating circumstance.
Insulating public officials from criticism violates the fundamental principle in international human rights law that media freedoms should be wider, not narrower, with respect to speech about politicians and government officials. Politicians and other public figures relinquish part of their rights to reputation and privacy by accepting their positions and must therefore tolerate wider and more intense scrutiny of their conduct.
Article 184 reduces the punishment for anyone who “ridicules, insults, or harms the reputation or prestige of the state, its institutions, its founding leaders, the state’s flag, peace, national emblem or anthem, or any of its national symbols” from 10 to 5 years in prison. However, article 183 now provides for between 15 and 25 years in prison for anyone who insults or ridicules the head of the state or harms his reputation or standing, allowing for a court to deem a wide range of speech as punishable under this provision.
The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (1995), which are based on international human rights law and standards, provide: “No one may be punished for criticizing or insulting the nation, the state or its symbols, the government, its agencies, or public officials, or a foreign nation, state or its symbols, government, agency.”
Protests and demonstrations continue to be fully prohibited, though article 210 reduces the penalty for “participating in a gathering of at least five people in a public space with the intention of rioting or disrupting the implementation of laws and regulations” to between one and three years in prison, but only if the accused remains at the site after an order to disperse is issued. The penalty is increased to a minimum of five years in prison if the gathering results in rioting or a disruption of peace or public security.
Article 212 provides a life sentence for anyone who calls for, promotes, or leads a gathering in a public space “with the intent of committing riots, preventing or disrupting the implementation of laws and regulations, or disturbing public security, even if his call is not accepted.” The article does not explain how courts are to determine intent.
The UAE’s new cybercrimes law, Federal Law no. 34 of 2021 on Combatting Rumors and Cybercrime, replaces the notoriously repressive 2012 cybercrimes law used many times to silence dissidents, journalists, activists, and anyone the authorities perceived to be critical of the government, its policies, or its representatives.
The new law, which borrows abusive provisions from its predecessor and adds new vaguely worded and disturbing provisions, further restricts the already severely limited and heavily monitored online space, posing a serious threat to the liberty of peaceful dissidents and making it even harder for ordinary citizens, residents, and visitors alike to recognize what kinds of online activities could lead to arrest and prosecution.
Article 1 of the new law defines “unlawful content” as content that when published, circulated, or reshared may “harm the state’s national security, its sovereignty, or any of its interests … or its friendly relations with other states … or incite to feelings of hostility or hatred … or decrease public confidence in the states’ actions and its institutions.” This vague and overboard definition effectively outlaws any speech made in online public forums or in private chats that the government does not approve.
Article 20, which is identical to an oft-criticized article in the old law, provides a sentence of up to life in prison for anyone using the internet “to advocate the overthrow, change, or usurpation of the system of governance in the state, or obstruct provisions of the constitution or existing law, or oppose the fundamental principles on which the system of governance is based.” It provides for the same sentence for anyone who incites or facilitates these acts.
Article 22 provides prison terms of between 3 and 15 years for anyone using the internet “who provides to any organizations, institutions, agencies, or any other entities information not authorized for publishing or circulating liable to harm state interests or damage its reputation, stature, or status.” An older version of this provision criminalized this act only if the information shared was deemed to be “incorrect, inaccurate, or misleading,” but this stipulation has been removed.
That provision was among those used to sentence the prominent human rights defender Ahmed Mansoor to 10 years in prison. Mansoor, held in al-Sadr prison outside Abu Dhabi, has entered his fifth year in solitary confinement.
Article 23, identical to another provision in the old law, also provides for prison terms of between 3 and 15 years as well as a fine of up to 1 million dirhams for anyone who uses the internet “with the intent of inciting to actions, or publishing or disseminating any information, news, caricatures, or other images liable to endanger state security and its higher interests or infringe on the public order.”
Article 25 provides a prison sentence not exceeding five years and a fine of up to 500,000 dirhams ($136,000) for anyone using the internet “with the intent of deriding or harming the reputation, stature, or status of the state, any of its institutions, its founding leaders, the state flag, national safety, its motto, its national anthem, or its symbols.”
An older version of this provision provided for prison sentences of between 3 and 15 years and was used by a court to sentence a Jordanian journalist, Tayseer al-Najjar, to three years and a fine of 500,000 UAE Dirhams (US$136,000) in 2017 for Facebook posts made years before in which he criticized Egypt, Israel, and Gulf countries while living in Jordan before he moved to the UAE for work. Al-Najjar died in February 2021 in Jordan, two years after his release from prison in the UAE.
A new provision (article 28) that specifically prohibits any act that may “offend a foreign state,” has been included in the law and provides a minimum prison sentence of six months and a maximum sentence of three years as well as a fine not exceeding 500,000 dirhams ($136,100).
The new law also maintains severe restrictions on the rights to peaceful assembly and free association. Article 26 for example criminalizes the act of using the internet to “plan, organize, promote, or advocate demonstrations, marches, and the like without a permit from the competent authorities.”
Several provisions in the new law may be particularly detrimental to media freedoms, which remain severely restricted even though international media outlets maintain offices in the country. Article 19 provides for a prison sentence not exceeding one year or a fine for anyone who manages a website or a social media account that publishes content, data, or information that does not comply with media content standards issued by the relevant authorities. Article 43 provides prison terms of up to three years for defamation and causing insult to others and considers such an act directed at a public official to be an aggravating circumstance leading to a higher sentence.
In January, the UAE cabinet approved the general framework of the UAE Media Strategy, which aims to, among other things, “manage the country’s reputation,” and which provides an overview of what content both traditional and digital media, including in the free trade zones, as well as social media users and social media influencers, are prohibited from publishing. Some journalists – professionals whose trade depends on the right to freedom of expression and whose offices operate in the free zones – have previously told Human Rights Watch they are under continuing pressure to self-censor.
The law contains an entirely new section entitled “Spreading Rumors and False News.” Article 52 provides for a prison term not exceeding one year and a fine of no less than 100,000 dirhams ($27,225) for anyone who broadcasts, publishes, republishes, circulates, or reshares false or misleading information or rumors or information that contradicts “what has officially been announced” or “or broadcasting any sensational propaganda that could incite or provoke public opinion, disturb public security, spread terror among people, or cause harm to the public interest, the national economy, public order or health of the public.” It provides for a maximum of two years in prison if such acts were committed during periods of pandemics, crises, emergencies, or disasters.
New provisions also address the phenomenon of weaponizing human-operated accounts (trolls) and automated accounts (bots) to spread and promote disinformation on social media platforms, a practice the UAE government itself appears to have pursued to advance its political agendas and policies.
Article 54 on automated bot accounts provides for a prison sentence of no more than two years and/or a fine between a 100 thousand and 1 million dirhams ($272,250) for anyone who “creates or modifies a bot account with intent of publishing, resharing or circulating false data or news in the country” or that enables others to do the same.
Article 55 on human-operated accounts provides for prison terms of up to three years for those who request, accept, or take, whether directly or indirectly, a gift or a material or moral benefit, or a promise thereof, in return for publishing or resharing unauthorized content. Whoever manages or supervises the operation of an offensive account or website, or rents or purchases advertising space on it, can be punished with the same penalty. The article also stipulates that the competent authorities may consider a website or an electronic account offensive if it has repeatedly published false data or content that violates the law.