Substantive criminal protection for the right to image in the digital era under UAE and French legislation

Penalties prescribed for the violation crime against image i photo copyright

It is noteworthy to highlight that both Emirati and French legislators have established various penalties and measures for all forms of criminal violations of an individual's right to image, encompassing both non-aggravated and aggravated offences.

Punishment of Simple Form Crimes

The forthcoming subsections deal with the types of punishment for simple-form crimes as outlined by the UAE laws and the French Penal Code; these are as follows:

Punishment according to UAE Penal Legislation

The UAE legislator has stipulated various penalties in terms of amount and duration in Emirati law, Crimes and Penal Code, as well as Anti-Rumors and Cybercrime Laws.

Punishment according to UAE Crimes and Penal Code Federal Decree Law no (31) (n 12).

Article 431-2 of the UAE Crimes and Penal Code stipulates that individuals who capture or transmit a photo of a person in privacy shall be subject to punishment, including imprisonment and a fine.

The analysis of Article 431-2 of the Crimes and Penal Code reveals several key points regarding the punishment for violating the right to image. Firstly, the article mandates that individuals who capture or transmit photos of a person in privacy are subject to imprisonment and a fine without giving the judge discretionary power to select between the two penalties. This dual punishment is obligatory upon the conviction. However, the legislator has not specified the duration of imprisonment or the amount of the fine, entrusting the court with this decision based on the case circumstances while adhering to the prescribed minimum and maximum limits for each penalty.

Since the crime against the right to image is a misdemeanour, the court is required to set the prison sentence within the range of one month to three years, as outlined in Article 72 of the same law. Similarly, concerning fines, the court has the discretion to impose an amount not less than one thousand Emirati Dirhams and not exceeding AED 5 million 1000 United Arab Emirates Dirham equals (10387.03) Ukrainian hryvnia and 5,000,000 United Arab Emirates Dirham equals (51935169.40) Ukrainian hryvnia, while 1000 United Arab Emirates Dirham equals (251.28 Euro) and 5,000,000 United Arab Emirates Dirham equals to (1,256,384.49 Euro). under Article 72.

It should be noted that the legal provisions stipulate that publicly publishing photos related to the personal lives of families or individuals Article No. 10 of the Crimes and Penal Code stipulates that: “Within the provisions of this Law, they shall be considered methods of publicity: 1. Say or Shout if it happens in public or transmitted by any means in a Crowd, Public Place, or a Place available to the Public; 2. Actions, Signals, or Movements if they occur in a Crowd or in a Public Place or a place available to the Public, or transmitted to someone does exist in these places by any means, or seen by someone who has no involvement in them; 3. Writing, Drawings, Pictures, Symbols, Audio, Visual or Read Materials, Films and other Methods of Expression if they are displayed among a group, or in a Public Place or a place available to the Public or distributed or circulated without discrimination by any means or sold to people or offered to them for sale. anywhere". using a method that lends the act gravity necessitates punishment. Al-Jundi (n 21) 204. If one of these two conditions, i.e. public publishing and privacy, does not exist, the act cannot be considered a crime.

Punishment according to Anti-Rumors and Cybercrime Law Federal Decree Law no (34) (n 12).

Article 44 of the Anti-Rumors and Cybercrime Law stipulates that anyone using a computer network or electronic information system intending to invade someone's life privacy without consent shall be subject to punishment in cases not authorised by law. The penalty involves imprisonment for a period of not less than six months and a fine ranging from AED 150,000 to AED 500,000, 150,000 United Arab Emirates Dirham equals (37,636.81 Euro) and 500,000 United Arab Emirates Dirham equals (125,456.03 Euro). or one of these two penalties. These penalties must be imposed in cases of using any IT means with the intention of invading one's privacy without consent and in cases other than those authorised by law in one of the following ways: Khalid Iraqi, Law on Combating Cybercrimes and Rumors: in accordance with Federal Decree Law no (34) of2021 regarding Combating Cybercrimes and Rumors in the United Arab Emirates (United Pub & Distribution 2022) 401.

Anyone who takes photos of others in any public or private place or prepares, transmits, discloses, copies, or keeps electronic images of those people.

Anyone who publishes electronic images or photographs to someone, even if they are correct and real, with the intention of harming this person. The legislator here requires availability, i.e. the publication of these photos has been done with the intention to cause harm to the victim, and therefore, the crime does not exist unless there is evidence that they have been published to cause harm, regardless of whether these photos are real or fake.

Anyone who takes photos of injured, dead, or victims of accidents or disasters and transmits or publishes them without the permission or approval of concerned people. Here, we note that the legislator links the crime of capturing photos to a lack of permission that should be obtained from public authorities or their families.

Punishment according to the French Penal Code French Penal Code (n 12).

Article 226-1 of the French Penal Code stipulates that anyone who intentionally captures, transmits, or records a photograph of another person in privacy without his consent shall be punished with imprisonment and a fine of EUR 45,000. Besides, the French Law, in Article 226-3-1, also punishes anyone who commits the act of visual voyeurism with one- year imprisonment and a fine of EUR 15,000, as well as anyone who resorts to using any means whatsoever to view one's sensitive organs due to the way he or she dresses or being in a closed place, and does not want others to see them in that situation. This Punishment applies to all those who commit the act without the knowledge or consent of the victim.

Complementary Punishments

Complementary Punishments according to UAE Crimes and Penal Code:

Article 431 of the UAE Crimes and Penal Code stipulates that in all cases, a judgment shall be issued to confiscate devices and other items that may have been used in the violation of the right to image. Besides, all recordings obtained from those devices shall be destroyed as well.

Complementary Punishments according to Anti-Cybercrime Law

Article 56 of the Emirati Anti-Rumors and Cybercrime Law stipulates that if the perpetrator is convicted of committing the violation crime against the right to image, the Court shall order confiscation of the devices, programs, or any means used to commit this crime and even the funds obtained from that act. All recordings, information, or data obtained from those devices shall be destroyed so that they cannot be used again, whereas the confiscation penalty is considered complementary and obligatory, and its imposition shall not prejudice the rights of bona fide third parties. Iraqi (n 64) 505.

Penal Measures and Violation Penalty

A. Penal Measures

Article 59 of Anti-Rumors and Cybercrime Law permits the Court, in case of a crime against the right to image, to take any of the following measures:

The Court might issue an order to place the convict either under supervision, subject him to an electronic monitoring system, deny him or her of using any IT means, or place him or her in a therapeutic shelter or rehabilitation centre for a period that the court deems appropriate.

The Court may completely or partially close the violating site whenever technically possible.

The violating website might be blocked completely or partially for the period determined by the court.

B. Violation of Penal Measures

Article 59 of the same law punishes anyone who violates any of the penal measures by imprisonment for a period not exceeding one year or a fine not exceeding AED 5,000.67 The Court may prolong the imprisonment for a period not exceeding half the original period provided, and the total duration shall not be more than (3) three years, or it might be replaced by another measure as stated above.

Initiation Punishment according to UAE and French Laws

The Emirati legislator punishes the attempt to assault the right as a misdemeanour in the form stipulated in Article 44 of Federal Law on Anti-Rumors and Cybercrimes; based on the provisions of Article 57 of this law, the Emirati legislator penalises any attempt at misdemeanour with half the penalty prescribed for the complete crime.

However, the Emirati legislator does not penalise a misdemeanour attempt to infringe upon the right to image, as stipulated in Article 431 of the Crimes and Penal Code. This law lacks specific provisions for punishing such behaviour. Accordingly, we advocate for legislative intervention to stipulate penalties for attempts to commit crimes against personal images and photos, as it represents a serious violation of one's right to protect his or her photos. In other words, the Crimes and Penal Code should be somehow consistent with the Federal Law on Anti-Rumors and Cybercrimes.68

The French Penal Code explicitly stipulates in Article 226-5 that an attempt to capture or transmit one's photo without permission shall be penalised with the same penalty prescribed for a fully committed crime. After all, it is possible to imagine an attempt to violate the right to image, such as, for example, when someone is arrested while trying to capture a photo of an individual in privacy. There is no doubt that this behaviour would be considered an attempt to commit a crime.

Crime Penalty in Aggravated Form

Both UAE and French laws should be taken into consideration when discussing the crime penalty in aggravated form.

UAE Laws

A. UAE Crimes and Penal Code

Article 431 of the Crimes and Penal Law has determined the penalty to imprisonment for a period not exceeding seven years with a fine if a public employee commits one of the acts constituting a violation of the right to image, based on his or her position of authority.

Therefore, it is quite evident that aggravating circumstances can be applied if the offender is a public employee in accordance with the meaning of Article 5 of the same law, if he has 67 5,000 United Arab Emirates Dirham equals (1,254.56 Euro). 68 Iraqi (n 64) 500. committed one of the forms of violation crime stated before, i.e. taking, transmitting, publishing a photo, and exploiting for this purpose the authorities granted to him by virtue of being in a public position.

It should also be noted that the legislator has set a maximum for the imprisonment penalty without identifying a minimum, leaving it to the judge to impose the appropriate penalty. The fine also has to be determined by the court. However, the legislator has made both imprisonment and fine as obligatory punishments.

B. Anti-Rumors and Cybercrime Law

In Anti-Rumors and Cybercrime Law, the legislator distinguishes between two types of aggravating circumstances: specific aggravating circumstances related to violating private life sanctity, including the crime already described above, and general aggravating circumstances associated with committing any cybercrime stipulated in the Anti-Rumors and Cybercrime Law.

Article 44 of the Anti-Rumors and Cybercrime Law includes a few specific aggravating circumstances. The Penalties for such type crimes are identified below: ibid 510.

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Article 44 of the Law in question stipulates that anyone who uses an electronic information system, or any IT means, shall be punished with imprisonment for a period of not less than one year and a fine of not less than two hundred and fifty thousand Dirhams and not exceeding AED 5,000, or one of these two penalties. The crime shall encompass any alteration or manipulation of a recording or a photo with the intent to defame or offend another person. It should be noted, however, that three conditions are required to increase the penalty: editing a photo and then publishing it through IT means to defame and insult the photo owner.

The final paragraph of Article 44 of the Anti-Rumors and Cybercrime Law increases the penalty to imprisonment for a period of no less than one year and a fine of no less than AED 250,000 and not exceeding AED 500,000 for anyone who uses an electronic information system or any technical means to make any modification or manipulation to one's photo to defame or offend the owner of that photo. The Court has the discretion to apply one or both penalties: imprisonment or a fine.

On the other hand, Article 60 of the Law on Anti-Rumors and Cybercrime stipulates general aggravating circumstances that apply to the offender who commits any crime stipulated in this Law, which are:

The perpetrator commits any crime stipulated in the Anti-Rumors and Cybercrime Law by exploiting his or her authorities at work.

The perpetrator commits any crime stipulated in this Law on behalf of or for the benefit of a foreign country, any hostile, terrorist group, or illegal organisation.

French Law

French law increases the penalty for the violation of a crime against the right to image in the following cases:

Publishing a photo of a spouse or partner: Article 226-1 of the Penal Code stipulates that the penalty for a spouse, boyfriend, and victim partner as per a civil solidarity pact who commits an act that includes a violation of right to image shall be increased to two-year imprisonment and a fine of EUR 60,000.

Publishing modified photo (Montage Process): Under Article 226-8 of the Penal Code, the penalty for the offender who publishes an image of a person after modifying it intentionally without the victim's approval is one-year imprisonment and a fine of EUR 15,000. It is argued that the punishment increase is attributed to the perpetrator's attempt to change the original photo by adding or deleting certain elements of the image without the victim's consent. ECtHR, Right to the protection of one's image: Factsheet (Press Unit ECtHR 2021).

It is remarkable to note that French Law tightens the penalty for modifying the photo by any means, while the UAE Anti-Rumors and Cybercrime Law confines the penalty to those who use electronic information systems or IT means in their modification to the photo. Another difference between the two laws is that the UAE law punishes merely the modification of an image without referring to the publishing process. In contrast, French law stipulates that the perpetrator should be punished for publishing a modified photo, regardless of whether the modification has been carried out by the perpetrator himself or someone else.

However, both UAE and French laws converge on the notion that the modification or publication of a photo must have occurred without the victim's consent and with the intent to harm the involved person.

The French Law, in Article No. 226-3-1, increases the penalty for visual voyeurism to up to two-year imprisonment and a fine of EUR 30,000 if this crime is committed by a public employee who exploits the powers granted to them by their position or when the victim is a minor, or suffering from weakness, due to age, illness, physical disability, mental or psychological conditions, or because of pregnancy, whether being apparent or known by the perpetrator, or when the crime is committed by more than one person, whether they are perpetrators or accomplices, or it has been committed on public transportation, or in a place designated for access to public transportation, or when photos of the victim's sensitive organs are taken, published, or recorded.

Publishing photos of a sexual nature: In Article 226-2-1 of the Penal Code, the French legislator has increased the penalty for the offender who publishes a photo of a person, whether in a public or private place, that is of a sexual nature or related to sexual matters, to become two-year imprisonment and a fine of EUR 60,000. This penalty is applied even if the victim consents to having a photo of a sexual nature taken, Detraz (n 26) 741. but does not agree to publishing. This has become a common case nowadays due to the development of information technology. De pourvoi n 15-82.039 (Cour de cassation Chambre criminelle, 30 mars 2016) [2016] Bulletin criminel 112.

The French legislator has done well in enshrining this text, which accurately addresses the case of the perpetrator who obtains the victim's photos with his/her consent but is published without approval for various reasons. With this text, the French legislator has put an end to the impunity of these perpetrators in such cases. Catherine Berlaud, `QPC: diffusion d'enregistrements presentant un caractere sexuel' (Lextenso, 5 octobre 2021) <https://www.actu-juridique.fr/breves/qpc/qpc-diffusion-denregistrements-presentant- un-caractere-sexuel/> accede 22 decembre 2023.

Conclusions and recommendations

In this research, we intend to offer a comprehensive overview of the violation of the right to image, delineating it into two main parts. The first part is related to the elements of the crime, while the second is dedicated to the penalties prescribed for this type of crime, whether in its simple or aggravated forms. From our analysis, several conclusions and recommendations have emerged.

Comparative legislation has not identified a specific definition of a crime against the right to image, leaving this matter to the consideration of jurisprudence and the judiciary.

Emirati and French law have not included independent provisions regarding the crime against the right to image due to its inclusion within the framework of rules governing the protection of private life.

The right to image is not absolute; instead, it is subject to exceptions that allow the capture and publication of a photo when it serves the public interest.

Image or photoprotection is considered one of the rights associated with the elements of private life.

The UAE Crimes and Penal Code requires the use of any device to commit a crime against the right to image, whereas the UAE Anti-Rumors and Cybercrime Law stipulates that this crime is committed exclusively by means of information technology. The French Law, on the other hand, states that the crime can be committed by any means.

Consenting to capture a photo does not automatically grant permission to publish it. Explicit consent is typically required for publication, especially for commercial use or if the photo could be seen as invasive or defamatory. Context matters and legal frameworks vary by jurisdiction, with special considerations for public figures and minors. Additionally, contractual agreements in professional settings may dictate photo ownership and usage rights.

UAE and French law stipulate that the crime against the right to image does not exist unless committed privately and without obtaining permission.

The UAE Anti-Rumors and Cybercrime Law and the French Penal Code criminalise modifying or processing a Photo without the victim's approval.

The French Penal Code punishes with a severe penalty anyone who publishes a photo of a person in a sexual situation, while there is no such penalty in the UAE legislation.

Finally, it is essential to note that the crime against the right to image is categorised as an Intentional offence.

Recommendations

Listed below are some vital recommendations.

We propose that the second clause of Article 431 of the UAE Crimes and Penal Code shall be amended by replacing the statement “anyone captures or transmits, by any device, a photo of a person in private" with the following provision: “anyone captures or transmits, by any means, a photo of a person in private”, similar to that of the French Penal Code.

We recommend that the Emirati legislator devote a special text to criminalising the violation of the right to image without the victim's consent through the acts of painting, sculpturing, engraving, publishing, or distributing.

We suggest that the UAE legislator amend Article No. 431 of the Crimes and Penal Code to criminalise taking a photo of another person without his consent, whether in privacy or at a public place, similar to the text in the Anti-Rumors and Cybercrime Law.

It would be better if the UAE legislator in the Crimes and Penal Code criminalises violations of the right to image through deleting, adding, or distorting, similar to what is stipulated in the Anti-Rumors and Cybercrime Law.

Finally, we do recommend that the Emirati legislator introduce a new text, whether in the Crimes and Penal Code or in the Anti-Rumors and Cybercrime Law, under which anyone who publishes an image of another person in a sexual situation or of a sexual nature without the approval of related people shall be criminalised, similar to that of the French Penal Code.

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