Dubai: With a camera phone in almost every hand, public spaces have become increasingly photographed and videographed. From tourists recording the sights and sounds of the city, to young adults capturing fun moments, cameras are present everywhere around you when you are outdoors.
If you are not comfortable with your photograph being taken, or in particular your child’s photograph being taken by strangers, what are your rights and responsibilities according to the UAE’s laws? Here is all you need to know.
What the law says
The UAE’s laws provide detailed legislations that determine the penalties for taking a person’s photograph without permission, storing them or keeping them in your possession.
These laws include:
1. Federal Penal Code – Federal Law No. 3 of 1987
2. Federal Copyright Law – Federal Law No. 7 of 2002
3. Federal Cybercrimes Law – Federal Law No. 5 of 2012
These laws impose strict penalties on individuals who violate a person’s privacy, which includes up to Dh500,000 in fines for taking a person’s photograph without permission.
Hari Wadhwana, Associate, OGH Legal, spoke about how these laws are applied across the board, and would be applied in the case of children as well. He stressed on the fact that no one can take a child’s photograph without express permission from the parent, ideally in a written format.
The law states that consent can be given by the guardian and this guardian is defined under the law as a person having legal liability. This only includes parents and may not include nannies who are mere caretakers and cannot take decisions for the child in the parent's stead.
1. Federal Penal Code – Federal Law No. 3 of 1987
Article 378 of the Federal Law No. 3 of 1987 deals with criminal action against persons who take pictures of other's without their permission. The punishment for taking pictures without the consent of another party can be a fine or a jail sentence depending on the gravity of the crime and effects of such on the other party.
“Of course, in the case of children, it is a matter of sensitivity and the person capturing the picture could be subject to a hefty penalty,” Wadhwana said.
Article 378 (as amended by Federal Law no. 34 dated 24/12/2005):
Shall be subject to a jail sentence and to a fine, whoever violates the private or familial life of individuals, by perpetrating one of the following acts, unless authorised by law, or without the victim’s consent:
a- If he lends his ear, records or transmits, through an apparatus of any kind, conversations that took place in a private place or through the telephone or any other apparatus.
b- Captures or transmits, through any kind of apparatus, the picture of a person in a private place.
Should the acts, referred to in the two preceding paragraph, be perpetrated during a meeting in front of the attending persons, their consent shall be presumed.
Shall be sentenced to the same penalty, whoever publishes through any means of publicity, news or pictures or comments related to the secrecy of private or familial life of the individuals, even if correct.
Shall be subject to a jail sentence for a period not exceeding seven years and to a fine, the public servant who perpetrates one of the acts mentioned in the present article on the strength of the authority of his position.
The apparatuses and other objects that may have been used in perpetrating the crime shall, in all cases, be confiscated and order shall be given to erase all relative recordings and destroy same.
2. Federal Copyright Law – Federal Law No. 7 of 2002
Article 43 of the Federal Law No. 7 of 2002 deals with a situation where a person takes a picture of another without consent and keeps it in his possession. The rationale behind this rule is that a person's photograph is his creation and he or she owns the copyright. Another person cannot violate this copyright and must take express consent. A person may be subject to jail for six months or fines depending on the gravity of the crime committed.
Article (43)
Unless otherwise agreed, whoever makes a photograph of another, in any manner whatsoever, has no right to keep, exhibit, publish or distribute the original or copies thereof, without authorisation from the person who appears in the photo. Nevertheless, the photo may be published if made on occasion of public events, or relating to official or public persons or enjoying celebrity; or if the publication was authorised by the public authorities as a service for public interest; provided that the exhibition or circulation of the portrait does not prejudice the position of the person concerned by this photo.
Unless otherwise agreed, this person may authorise publishing the photo in the newspapers and other publishing media even though the photographer did not acquiesce.
3. Federal Cybercrimes Law – Federal Law No. 5 of 2012
Article 21 of the Federal Law No. 5 of 2012 (Federal Cyber Law) imposes a jail term of six months or fine between Dh150,000 to Dh500,000 for taking another person's pictures invading privacy and keeping copies of the pictures. This would also include publication and circulation of pictures on social media or privately.
The Cyber Law also imposes aggravated punishment in terms of jail of one year or fine between Dh250,000 to Dh500,000 for morphing pictures to knowingly defame or attacking the captured person.
Children Specific Law
According to Wadhwana, there are two child specific laws, which are relevant to the discussion on children’s photographs.
“Article 5 of the Federal Law No. 3 of 2016, or the Federal Child Rights Law, specifically recognises children's privacy and mandates that the privacy would be in line with the guardian's consent. However, this law needs to be read along with general law discussed earlier,” Wadhwana said.
The Federal Child Rights Law also stipulates strict penalties related to the possession of child pornography, let alone the production or distribution of such content.
“All the laws referred to above apply to children, too, and the Federal Child Rights Law deals with the aspect of consent. The law states that consent can be given by the guardian and this guardian is defined under the law as a person having legal liability. This only includes parents and may not include nannies who are mere caretakers and cannot take decisions for the child in the parent's stead. It is advisable that consent is issued by the parents and not the nanny. Written consent - even if over email - is highly recommended over a verbal consent,” Wadhwana said.
