Alsuwaidi & Company recently secured a successful outcome in a criminal case before the UAE courts concerning the application and the interpretation of Article 44 of Federal Decree-Law No. 34 of 2021 on Combating Rumours and Cybercrimes.
The case addressed the circumstances in which the act of taking a photograph of another person may give rise to criminal liability under the Cybercrime Law. In doing so, it provided important clarification on the scope of Article 44 and reaffirmed that criminal liability under Federal Decree-Law No. 34 of 2021 requires the presence of criminal intent (mens rea) in addition to the prohibited act itself.
Article 44 of Federal Decree-Law No. 34 of 2021 criminalizes certain acts that infringe upon an individual’s privacy when committed using information networks, electronic systems, or information technology tools. The provision covers a range of conduct including eavesdropping on conversations, recording communications, taking photographs of individuals without consent, disseminating images or information that harm a person, and tracking the geographical location of individuals through electronic means. The law imposes penalties of detention for a period of not less than six months and/or a fine ranging from AED 150,000 to AED 500,000.
Background
The case arose following an incident in which the accused took a photograph of an individual who appeared to be engaging in conduct that was potentially unlawful.
The complainant subsequently filed a criminal complaint alleging that the act of taking the photograph constituted a violation of Article 44 of the Cybercrime Law, on the basis that the image had been captured without his consent.
Defence Position
The defence strategy focused on demonstrating the absence of the required mens rea. During the proceedings, it was established that the photograph had not been posted on social media, circulated electronically, or shared with third parties. Instead, the image had been captured solely for the purpose of documenting what appeared to be an unlawful act, with the intention of preserving evidence of the incident.
The defence therefore argued that the accused had no intention to infringe the complainant’s privacy or misuse the image in any manner.
Court’s Findings
After reviewing the evidence and the surrounding circumstances, the court concluded that the essential elements required to establish criminal liability under Article 44 had not been satisfied. In particular, the court noted the lack of evidence demonstrating any intention to harm the complainant’s privacy or reputation. The court accepted the defence’s submission that the accused’s purpose had been to document what he believed to be an unlawful act, rather than to violate the complainant’s privacy. Accordingly, the court ruled in favour of the accused and acquitted him of the charges brought against him.
In reaching its decision, the court considered both the factual circumstances of the case and the legal requirements under Article 44.
This decision highlights that criminal liability under the Cybercrime Law requires both actus reus and mens rea. Courts will also consider the purpose and context of using electronic devices when determining whether a cybercrime offence has occurred.
For further information or legal advice regarding cybercrime, white-collar offences, criminal liability, or investigations under UAE law, please contact Hany Hassan at h.hassan@alsuwaidi.ae