Raza Rizvi, Partner at Simmons & Simmons, Head of Middle East TMT, talks with Law Today about the rationale behind and impact of the new media regulations recently issued by the UAE’s National Media Council.

 

LT: New media regulations published by the UAE’s National Media Council (NMC) in March 2018 are designed to govern electronic media usage, including online activities such as e-commerce, publishing, selling print, video and audio material, and advertising. They include a feature that relates to looking
at how social media influencers are able to operate and conduct their businesses, which has been a primary point of focus for many people commenting on the new legislation. Could you tell us what you think the impact of this particular aspect of the legislation will be?
RR: A lot of the influencers in the UAE and in the wider region are so-called “micro-influencers”. So, they have a day job, like everyone else, but they use their social media presence as a way of effectively monetizing their popularity, so to speak.
In an interesting move the NMC has decided that they want to encourage this, but in a manner whereby such activity is regulated. At first glance there seems to be something of a contradiction in this, simply because when most jurisdictions want to regulate something, they often lay out a legislative or regulatory framework that doesn’t allow that activity or service to flourish. In this case, consistent with what we see throughout the region, the regulator first wants to exercise some control across the industry.
So, in the short term I think the microinfluencers will be affected – and most probably
discouraged – by this development, particularly because the regulations carry specific fines if they are not adhered to. It’s not clear how these regulations will actually be enforced because the activities we are talking about are taking place online, so it isn’t easy to look through to the real world commercial transactions that may have happened between the influencer and the payers. But the more conventional, mainstream or visible influencers will certainly now require a licence from the NMC.
Some UAE influencers have actually expressed approbation of these new regulations, because they feel that regulation gives them a legitimacy in the public eye that they had not had up until now. So, an immediate effect of the regulation is that it will more clearly differentiate between those whom I would term micro-influencers and those who effectively do it for a living. Those who do it for a living will probably be encouraged by it. Like other regulated service providers, they will probably try to absorb the costs of compliance into their fees.
In the longer-term, we don’t yet know to what degree this will impact the wider region. One of the things that makes it interesting is that, in the past when we have been advising some of the large media businesses and consumer-facing corporates on the use of social media influencers in different jurisdictions (including the UAE, Egypt, some of the Levant countries and the wider GCC), the focus was very much around the legitimacy of the payments and the corporate set-up behind the recipient of the fees. This was something we previously looked at and now we’re having to revise what we said in terms of the overall risk profile, because of the regulations. Given the geographical “reach” of the influencers on digital platforms, it will be interesting to see what neighbouring countries do now, as a reaction to the NMC’s regulations. What we have seen commonly with media legislation is that the countries that neighbour the UAE take a very keen interest in legislative developments here. The UAE is seen is something of a leader in this regard because from
a new media perspective it is quite an attractive partner for international businesses – part of its overall brand is that it’s the most modern and progressive jurisdiction in the region. So in the case of regulation that has been introduced to advance a particular line of business, I would not be surprised to see similar regulations from media regulators across the GCC. I don’t know how long that might take, but I suspect media regulators will be looking at the practical and business impact of the NMC’s regulations.

 
LT: General Director of the NMC Mansour al Mansouri has talked about these steps
“…seeking to help the UAE media remain on top of rapid developments in electronic media, enriching and organising digital content, ensuring media material respects the religious, social and cultural values of the UAE, while promoting freedom of expression and constructive dialogue”. This is a real
balancing act!
RR: Yes. And time will tell how that balancing act plays out through the implementation and
enforcement of this legislation. An element of the control being sought by the NMC is certainly in the public interest, particularly because a lot of campaigns and media-related activities target quite vulnerable elements of society – including young people who have not reached legal majority. So, it’s quite fair and understandable for a media regulator to seek an element of control, from that perspective.

You can see that this strong sense of community value preservation is widespread. In Qatar, where they issued the region’s first data protection law, there’s a specific aspect of that law that deals with targeting children, which is an unusual feature of data protection legislation. As far as I’m aware, there isn’t any other data protection legislation that has an entire section dealing with, for example, marketing that targets children. There is perhaps a heightened recognition in the region that media activity is fundamentally changing and it really has the effect of shaping tomorrow’s society. So these new measures adopted by the UAE government are quite consistent with the regional thinking of lawmakers here.

LT: Yes, and this makes sense when you look at the social concerns related to media and its accessibility, the world over. In the US and UK there are ongoing debates about the extent to which graphic content influences the behaviour and psychosocial well-being of young people. 

When it comes to this new legislation, it feels as though everything is being conducted in quite a reasonable way. As I understand it, new media entities have three months to ensure they comply with the new regulations. 

Do you think the trend of micro-businesses not being able to proliferate (which you have identified above) will apply to other media – including e-commerce, publishing and print video material?
RR: The breadth of the new regulation is actually quite noteworthy. Commentators have
focused on the regulation around social media influencers but the legislation applies much
more broadly. It is worth being aware that media in the UAE is governed by an underlying law issued in 1980 which simply hasn’t evolved, at a primary legislation level, to truly embrace new media and the digital media age. So we are talking about an applicable law today that refers frequently to the printing press. This means that those of us who advise on issues related to media law need to say in all our advisory work that we are applying the publication of the content in question by analogy to this law which refers to the printing press, for example.
For years there has been a clamour for reform, in order to modernise the underlying principles of this media law. The driver behind the call for change is not to fundamentally change the law, but rather to bring it up to date and make it fit for purpose. If this process was to result in something like the growth of a more casual licensing regime or more rigour around content, those would be incidental effects and the issues they raise require a separate debate. However, the question of whether the underlying media law needs to be modernised to embrace the kind of media we are currently immersed in is not a debate in my view; it’s clear and self-evident. With that in mind, the step that is being taken to
issue legislation that governs our current media climate is quite a progressive one, but it is also seeking to regulate a very particular subset of new media. There is an interesting delta between the kind of behaviour encouraged by new media/social media platforms and the underlying law in the UAE (which hasn’t changed since 1980)– this must surely be addressed in the coming years.
LT: In that sense, might this have been seen as the most urgent step to take in terms of the media reform process – perhaps because of the rate at which social media is evolving and the associated behavioural implications?
RR: I’m sure this regulation was reactive, and I’m sure that in turn there will be other laws and regulations that will come into force because of particular, standalone concerns. The reality is that values are changing around the world, whether we like it or not. There are values that a nation is associated with historically, values it is associated with today and there will be different answers given to the ostensibly straightforward question ‘what are your current values, as a nation?’, depending on which segment of society you speak to.
An interesting question to ask in the particular context we are looking at, with the NMC’s new legislation, is what really conflicts with the nation’s values. Here in the UAE you have such a confluence of different nationalities and cultures, so some people – including me – would say that one of the core values of the UAE is the ability to embrace that plurality. Then of course the question arises, when you see the enforcement of a particular law because of something that is seen to conflict with historical Islamic values, is that not somewhat inconsistent with the values of plurality and multiculturalism?
So there are many interesting dimensions to these issues. One of the challenges for those
of us who advise on media-related issues and for those who have to make business decisions around them is that we don’t have case law to give us additional guidance. When it comes to what is acceptable within particular contexts, there is much that is not concrete. So speaking hypothetically, would it be against the nation’s values to feature a female influencer wearing a swimsuit talking about how good a particular kind of suntan cream is? Is this something that would not simply be frowned upon, but would actually be regarded as an infringement of a particular law? If so, would it be enforceable? There are all sorts of grey areas that won’t be easy to navigate, because additional guidance isn’t yet available. Furthermore, we don’t have institutions here such as an independent Advertising Standards Authority – which is present in the UK and which develops its own body of case law, helping to determine what a good course of action is based on precedents that
have been set in the past.
LT: As part of this reform or revision process, do you see a trend towards establishing this kind of independent authority able to manage knowledge and case law?
RR: Possibly, but I think that regulators in the region would prefer to maintain the discretion to monitor situations as they see fit. I certainly don’t see the media industry being allowed to “self-regulate” in the region anytime soon.
There are lots of broader pieces of legislation that have emerged in the last ten years that have not yet had a overseeing body associated with them. If you look at competition laws across the region, you will see that not every jurisdiction has a dedicated body with expertise to monitor them. I think it’s likely that this will also be the
case when it comes to new media.
But we will see some interesting developments such as what is happening in Saudi, where to date we haven’t had cinemas, yet there is a clear indication that these will proliferate rapidly and there is even a change in law which is allowing them to do so. There was also a recent incident where a concert was due to take place, but dancing was prohibited. What this indicates is that the tension of public demand for liberal content and entertainment on the one side and the traditional regulators holding traditional restrictive values on the other means that something will have to give. The regulators know that this is a challenge
they face and that they have to manage it in a way that is responsible and not destabilising. A good example of this is the creation of a new “e-sports” body in Saudi Arabia – this is to address the growing demand of online games and a recognition by the government that it needs some controls and that there is opportunity to commercially gain off the back of this demand.
LT: It makes sense to me that, even if you want to reform and want things to open up to attract a more diverse group of people, as a legislator, you would want to take it step by step.
RR: Yes, it does make sense. I am glad in fact that they haven’t done what some jurisdictions in some areas of law do, which is essentially to copy and paste laws and regulations that they have seen in other jurisdictions. Laws and regulations in some more developed jurisdictions are the product of a lot of consultation within  specific markets – and the stakeholders of those markets are different to the stakeholders here. So I’m pleased that in this case the regulators have acted thoughtfully and independently. They had a concern, articulated that concern, and sought to find a solution that should have a positive impact on those affected. I think that speaks to a level of maturity in the law making function. Bear in mind that they could have simply prohibited influencing altogether. They didn’t do that. Or they could have brought in controls that they had seen in other jurisdictions, which may or may not have been applicable. They didn’t do that
either.
So, looking at the big picture, I think this new legislation can be seen as an encouraging
development. Influencers, again, are an interesting example – and the tendency of people
to be influenced extends a long way beyond what you might imagine. One of the industries
I am active in is the healthcare industry, where a doctor or senior consultant healthcare
professional is an influencer – whether they wish to be or not. Their endorsement of a particular product is incredibly valuable. What we are currently seeing in the region is a much more responsible use of that relationship. So, in Saudi there is now a transparency code, whereby if a doctor receives money to endorse a particular product, there is a structure around what is happening and the doctor needs to disclose that information. This is in recognition of the fact that individuals who have some form of power need to exercise it wisely and in a way that the state is comfortable with. The NMC’s regulation as applied to social media influencers operates in the same way. The legislators recognise that something that is poorly thought out with a financial transaction taking place is ultimately
bad for everyone.

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