Can electronic evidence such as email, and instant messages through WhatsApp or other social media applications be used in criminal defamation proceedings?

The UAE laws regarding crime against people, and particularly when such crimes are committed online are strict and aim to protect people from activities that could potentially harm the victim’s reputation.Here, we are exploring the use of these electronic contents as evidence during a defamation investigation and subsequent trial.

In this article, we will review the legal framework around defamation laws in the UAE and the use of online messages such as emails and WhatsApp as evidence in defamation proceedings.

Defamation under the UAE Penal Code (Federal Decree-Law No. 31 of 2021) is the damage of another person’s reputation by means of attributing false comments. Articles 425 through 427 define the parameters of slander—spoken defamation—as well as libel—written defamation.

The complainant of a defamation claim has to show the following:

1. 1. Existence of a False Statement: The remark has to be obviously untrue.
   2. Publication: The statement has to have been shared to a third party.
   3. Damage: The comment must to have tarnished the plaintiff’s name.
   4. The complainant could have to prove that the statement of the defendant was a result of wilful intention to hurt or their negligence.

Electronic Evidence in Defamation Cases:

 In defamation proceedings involving digital communications such emails and WhatsApp messages, the UAE Evidence Law, Federal Decree-Law No. 35/2022 on Evidence in Civil and Commercial Transactions, offers clear rules on the admissibility of electronic evidence.

As per Article 53 of the aforesaid Evidence Law, any information exchanged using the information technology means shall qualify as admissible evidence as long as such messages can be obtained clearly.

Moreover, Article 54 of this law elaborates on the types of electronic evidence that may be accepted such as emails, and instant messages.

Article 55 states that electronic evidence has the same weight as written evidence in court procedures; hence, when supporting a defamation action, emails and messages can be used just like written materials. Articles 56 and 57 distinguish between what amounts official and unofficial electronic evidence.

WhatsApp messages and such other online messages hold evidentiary value as long as they are not contested. However, formal evidence issued by an authority will have official recognition. Whereas the electronic evidence can be contested, however Article 58 of the law puts the obligation on the contesting party to provide solid proof to support their challenge.

Article 60 requires that electronic evidence be given in its original form, therefore guaranteeing its legitimacy; if necessary, it may also be sent to the court in writing for validation.

Article 61 finally states that a party may lose their ability to rely on sought electronic information in their defence or be used as evidence against them should they refuse to provide it upon reasonable grounds.

These clauses highlight under UAE law the legal position of electronic communications as acceptable evidence in defamation cases.

 Defamation under Cybercrime Law:

 Apart from the Penal Code, Federal Decree-Law No. 34 of 2021 on Cybercrime governs online defamation.

The law provides protection against online activities with the intention of defaming others. In this law, Article 20 specifically penalizes defamation using online methods such as WhatsApp or other instant messaging applications. Furthermore, Article 23 also prohibits online conduct that results in the spreading of misinformation, and thereby emphasizes the requirement of maintaining compliance with the law during online activities.

The Cybercrime Law holds people accountable for online defamatory activities, and allows the use of such evidence in the defamation proceedings, thereby complementing the UAE Evidence Law.

Practical Issues Regarding Presenting Electronic Evidence 

1. 1. Emails and WhatsApp chats are among electronic evidence that needs to be verified and kept in their natural state to prevent claims of manipulation.
   2. Technical confirmation or expert opinion could be needed to prove the integrity of the messages should one question the veracity of the digital communication.
   3. Every change should be avoided; hence, the original forms of messages and emails should be kept.
   4. During a defamation trial, the courts may admit online messages, however the party presenting such message may be asked to prove the validity of the material presented.

These materials are sufficient to initiate a defamation complaint as long as they comply with the legal requirements for them to be admissible.

The UAE laws including the Penal Laws and the Cyber Crime Laws provide a solid foundation to deal with online defamation in the present-time.

As admissibility of electronic evidence increases, online users should be aware of the legal consequences resulting from their online conduct. Moreover, potential victims should be diligent in securing the online evidence trail to pursue to their complaint.