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United Arab Emirates authorities have come up with a new cyber law which will prevent social media users from posting individual photos online without their consent. A violation of the law may lead the user straight to jail. The new cyber law could also mean that any criticism to the rulers of the country or any institution may also lead to 3 years in jail. Alternatively, they may also be deported.
Users who take advantage of the Internet to organise unlicensed demonstrations within the country are also going to be sentenced jail terms. Those who are found guilty of much broader crimes against the government such as soliciting prostitution or trafficking firearms will also be sentenced, as issued by the presidential decree.
The updated legislation, in fact, expands the 2006 cyber law of the country. The new cyber law has been advocated as the most comprehensive cyber law in the Middle East.
The law is also promoted for protecting personal information and privacy. Al Ittihad, a local newspaper, mentions that posting video or images online without any prior permission may possibly lead to imprisonment for up to 6 months. The fines for such violations can go as high as 500,000 dirhams which is equal to around $140,000.
The UAE has always been extremely tough on its residents regarding the use of the Net. On the other hand, other Gulf countries may follow the strict cyber laws of the country, as they harmonise telecommunications policies and security. Dubai police arrested a man in July for posting a video online. The video showed an Emirati thrashing a motorist of South Asian origin. The incident took place after there was a traffic altercation.
Dr Ali Al Jarman who is a managing partner at the Dubai law firm Prestige Advocates said that the law also included penalties against religious insults and for inciting conspiracy. Nevertheless, the new cyber laws may end up violating freedom of speech in the UAE for journalists, as well as residents of the country, who use social media for any reason.
One of the most debated issues in an employment agreement is the legality of restrictive covenant provisions, such as a non-compete clause which prevents employees from working for a competitor upon termination of their employment agreement. Courts are generally reluctant in enforcing non-compete clauses where they impose an unfair set of conditions on the former employee. Non-compete clauses are examined taking into consideration the factual background specific to each employment agreement.
A non-compete clause is a written restrictive clause placed on the employee within an employment contract or ancillary agreement. Under this clause, the employee agrees to refrain from engaging in any activity which is directly in competition with that of the employer, for a limited period of time, within a limited geographical area and within defined fields of activity upon the termination of his employment contract, regardless of the grounds for termination. A non-compete clause prohibits an employee from:
Non-compete clauses come into effect on the date of termination of the employment contract, after the notice period has been served. In the absence of a notice period, this restrictive covenant shall apply as of the day the employee actually ceases to be employed by his former employer.
Under UAE laws, provisions of law dealing with non-compete clauses can be found in:
Article (127) of the Labour Law states that:
"Where the work assigned to a worker allows him to become acquainted with the employer's clients or to have access to his business secrets, the employer may require him to undertake not to compete with him or participate in any enterprise competing with his own, after the termination of his contract. For such an undertaking to be valid, the worker must be at least 21 Gregorian years of age at the time the agreement is concluded, and the agreement must be confined, in terms of time, place and the nature of the business, to the extent necessary to safeguard the employer's legitimate interests."
Article (909) of the Civil Code states:
Article (910) of the Civil Code states:
"If both parties agree that the worker shall be liable for damages if he does not abstain from competition with such liability being unreasonably excessive in order to coerce him to stay with the employer, the condition shall not be valid."
In order for a non-compete clause to be valid, it must comply with the five cumulative conditions set out in Articles (127) of the Labour Law and (909) of the Civil Code1. If any one of these conditions is not met, the non-compete clause shall be considered as null and void, and employees shall be released from their obligations under this restrictive covenant.
In essence, non-compete clauses must be "reasonable" to be enforceable and this is determined by the courts based on the facts of each case. .. Generally, non-compete clauses are more likely to be upheld by UAE courts where the geographic restriction is smaller, its duration is shorter and the nature of the activity is clearly defined and narrow. Non-compete clauses are also more likely to be upheld if the employee is only restricted from soliciting the former employer's customers.
Under UAE law, there is no statutory obligation on employers to provide financial compensation to an employee committing to a non-compete clause, during the validity of the obligation. This being said, nothing prohibits the employer and the employee from contractually agreeing otherwise.
If an employee breaches a non-compete obligation, the employer can lodge a claim before the UAE courts to seek compensation for the damages they have incurred, provided that the employer can prove that he has incurred these damages as a direct result of the breach3.
Where the non-compete clause contains a predetermined financial penalty on the employee for breaching their obligations under the non-compete clause, the burden of proof is on the employee . In a decision by the Dubai Court of Cassation, the Court ruled that where the restrictive covenant specifies the amount of compensation due to the former employer in the event of breach by the former employee, then the burden of proof lies with the latter. If the employee manages to substantiate that no loss has been sustained by the former employer then no compensation is payable.4
In practice, substantiating the existence or the absence of a loss in case of a breach to non-compete obligations is difficult to make. Courts rely essentially on experts' reports and tend to deny the existence of a loss if no sufficient evidence has been provided to support the claim.
As it imposes a restriction on the right of an individual to work freely, the existence of a non-compete clause may not be assumed. It must be drafted in writing and the scope of its application must be clearly defined.
Employers seeking to insert restrictive covenants in their employment contracts are highly recommended to carefully consider the wording and scope of such provisions, in order to maximize the likelihood of them being upheld by the courts in the event of a breach by a former employee.
In sum, employers must ensure that non-compete clauses provide for a small geographic restriction, a short duration and a specified activity.
1. Dubai Court of Cassation, petition no. 105/2008, judgment of 30/3/2009 ; Dubai Court of Cassation, petition no. 87/2008, judgment of 22/12/2008.
3. Dubai Court of Cassation, petition no. 58/2008, judgment of 28/9/2008.
4. Dubai Court of Cassation, petition no. 122/2006, judgment of 17/12/2006.