MCM 321 Section 1 Power Point Slides Only as PDF(2)

8/7/2019 MCM 321 Section 1 Power Point Slides Only as PDF(2)

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Al Tamimi, Practical Guide to Litigation and Arbitration in the United Arab Emirates Weeramantry, Islamic Jurisprudence

Franklin, The First Amendment and the Fourth EstateMoore, Maye and Collins , Advertising and PR

Law (2 nd ed.)Nolfi, Legal Terminology Explained Kamali, Freedom of Expression in IslamFriedman , American Law: An introductionFeinman , Law 101


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Results will be placed outside my office doorIf you wish to contest an answer Please do it in writing; attach documentation to

your memo; place it in my in-box. I will accept no verbal or e-mailed queries about

test questions. Also, include your complete test.

Expect me to re-examine and possibly re-grade your otheranswers as well

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The examples of libel law which we will discuss, based on the APStylebooks introduction to media law, are largely Western examples, andmay differ (to extremes) in other cultures.

For a discussion of (often very similar) Sharia concepts, the library hasMohammad Hashim Kamalis Freedom of Expression in Islam(Cambridge: ITS, 1997)

See particularly its sections on:Slander (Qadhf), 171-175Libel (Iftir )175-177Insult (Sabb, Shatm), 177-182

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Defamation: A false* statement that injures someone'sreputation and exposes him to public contempt, hatred,ridicule, or condemnation.Libel: A false* written/printed statement that defames

someone. Some laws include broadcasting-related definitions of libel.Slander: An orally uttered (or broadcasted) false*statement that defames someone.Lawsuit (or suit): An action taken in court against you.

* While American definitions state that this has to be false othercultures/countries may not include that.

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Trade libel: written defamations of thequality of commercial goods and services. Currently a very narrow area of US law, as the

following term has been expanded to cover moreareas.

Product Disparagement: Causing injuriousfalsehoods that disparage the quality of aproduct or service but do not defame thecompany that provides and produces them. Moore, Maye and Collins, 102-103.


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Criteria for product disparagement include: The disparaging statement has been made The statement has been published to a third party by

the defendantSo its not a private statement between two people/parties;a third outside individual or group is involved.

The statement is about a specific product or service

The statement is the true cause of the actual harmsuffered by the plaintiff (continued on the next slide)


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A court must decide a libel or slanderagainst a public figure is not only false,but also done with actual malice (i.e., evilintentions)

More about actual malice on the next slide. The lesson: Private individuals generally have

more rights under defamation laws than dopublic ones.Note please: In some countries, public officials may claimmore rights than private individuals.

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A statement made with actual malice isone made with knowledge that it wasfalse or with reckless disregard of

whether it was false or not. Source: Franklin, p. 97.

More on this appears on the next slides

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The defendants in suits brought by publicpersons need only show that they neither knew that

what they were publishing was false, nor seriouslydoubted what they were publishing was not true todefeat a claim of actual malice. A defendant whocan legitimately say, I dont know if what Ipublished was true and I dont care or It couldhave been true I didnt bother to check has not

acted with actual malice. Actual malice is hard toprove; as a result, most public officials and figuresdo not bring libel suits and those who do generllydont win.

Moore, Maye, Collins, p. 97-98.


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An essential element of an action for libel [anddefamation] is that the complainant beidentifiable to a third party.

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Its not in the spectacular stories, which usually getcareful checking (and re-checking) by several editors.Its in the routine police/fire/court notices, orannouncements in which some factual mistake (names,dates, addresses, etc.) occurs.

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Many newspaper/online stories aboutlibel cases dont actually re -print thequestionable statement. Why? Because this itself might constitute libel. Thus, you often have to look into court

documents themselves to find out exactly what was written.

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Reporting (even accurately) somebody elsesslanderous comments may also provide grounds for alibel suit if the slanderous comments are indeed false.

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Person A calls Person B a drunken criminal You report it.Person B might sue YOU (not Person A)because youre the one who made the slanderpublic (and into libel). Person B would probably argue that s/he is a)

not a drunk and b) not a criminal, citing aspotless police record, testimony of character

witnesses, medical reports, etc.

So you accurately reported it, but the statementyou accurately reported is itself not accurate(and also falsely defamatory)

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In the eyes of the [US] law, tale bearers are asbad as tale makers. [T]hose who pass along adefamatory statement are as answerable in acourt of law as those who originated it.

The repetition of offending statements may beregarded as a separate publication for whichdamages may be recovered. Every person or

organization with a hand in the publication of thestatements could in theory, be a defendant.Moore, Maye, Collins, p. 101.


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The following slides identify three typesof defendant categories involvingdefamation (and product disparagementand trade libel, discussed earlier in ourcourse) Primary publisher

Republisher Secondary publisher


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None of these are infallible, but working within these categories may limit (in theWest at least) the legal complains onemay bring against you.

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The rationale behind the opinion privilege is that onlystatements that can be proven true or false are capableof defamatory meaning and that statements of opinioncannot, by their nature, be proven true or false.

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You may also be able to express views on subjects thatcannot be proved true or false.

Use figurative language: Somebody looks like an angel orlike a deer caught in the headlights, or is a rotten apple orthe black sheep of the family.

Tone: Are you being serious -- or humorous or silly or sarcastic?The point is that humorous language would negate the impressionthat the statement is serious.Of course, this depends on how the court interprets your tone

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Based on the idea that everyone has aright to comment on matters of publicinterest and concern, provided they do sofairly and with an honest purpose. Suchcomments or criticism are not libelous,however severe in their terms, unless

they are written maliciously.

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Thus you should be able to criticize amovie, book, CD, celebrity, politician, etc. Warning: Some governments prohibit or limit

perceived criticism of government or guidingideology.

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Some American states (and probablymany countries) require that certaincourt cases -- divorces, hearingsinvolving children, etc. are sealed andnot open to the public. If a reporter gets the data and publishes it, they

may be breaking the law AND open to a libelsuit if it reports any charges in the initial courtcase which are found to be untrue.

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This idea states that as long as the story isneutral (not supporting one side or the other)of a controversy, any defamatory statementsreported in it are not grounds for a libel suit. Doing this would reverse our earlier concerns

regarding the accuracy of a slanderous remark.Unfortunately for journalists, the concept of NeutralReportage as a privileged area is only rarely upheld byU.S. courts (or courts elsewhere in the world.)

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Basically, this says that the statement YOU thinkdefames you doesnt really do so. How does the law define defamation? To cite one

example: It would accuse someone of being acriminal, an adulterer, insane or infected with aloathsome disease.

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Know this for the test First used by Scottish lawyer Andrew Hamilton

in colonial America in the 1735 trial of

newspaper publisher John Peter Zenger.

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Zengers newspaper, The New York Weekly Journal , had criticized the statesgovernor for corruption and inefficiency.The governor responded by jailingZenger and prosecuting him forseditious libel.

Seditious Libel: Printing something which injures the state orincites public disorder

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In order to be at fault in publishing astatement, the person suing must prove that thereporter either did something they should not have done

or that they failed to do something that theyshould have done.

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SO: If the reporter did everything a reasonablereporter should have done to verify the information inhis or her story before publishing it, for example,

talked to all sides, obtained and read all relevant documents, took accurate notes, etc.

the reporter is not legally at fault."http://www.splc.org/legalresearch.asp?id=27

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People suing for libel who are eitherpublic officials or public figures will oftenhave to prove a higher level of fault thanan ordinary person.

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Legal definitions vary: They often involvethe words: injection into publiccontroversy.

The following slides provide several Americanexamples from different states

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A public figure is someone who: has thrust himself or herself into the vortex (i.e,

center) of a public issue or controversy or hastaken affirmative steps to attract publicattention. (NY)

has voluntarily and actively sought, inconnection with any matter of public interest, toinfluence resolution of the issue involved.(Calif.)

Once you become a public figure in California, youcarry that status to the end of his/her days.

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has assumed a role of prominence in the affairsof society. (Texas) Any libel controversy may require proof that thedefamation is relevant to the injured personsparticipation in that controversy.

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Examples of private figures: A teacher whose participation in public

controversy did not exceed that which she was

required to by school regulations (except thatshe responded to media inquiries.)

A corporation which did business with a party toa controversy, but was not part of the controversy

itself.

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Walters and Quinn

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According to your instructors interpretation of the data,UAE media professionals are principally subject to:

UAE Federal Law 15 on Press and Publications

But they are also potentially subject to other laws:

Laws on revealing national secrets, etc.Specific regulations set down by various ministries (such as regarding

advertising certain products).Sharia Law

For violating interpretations of specific Islamic law prohibitions.


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We need to think of three things:1) The law itself (how its worded)2) How the law is interpreted by courts

i.e., how it is actually applied.3) How it is enforced

And IS it enforced ?


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This chapter provides an overview of how theUAEs legal system developed and works today.

Be sure to know the terms and definitions weintroduceBe prepared to identify articles and their contentsfrom the UAEs own Law on Press and Publishing.

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Some of this material comes fromOUTSIDE of our textbook, principallyEssam Al Tamimi, Practical Guide to

Litigation and Arbitration in the United Arab Emirates (The Hague, 2003: KluwerLaw International).

On or tests, you are responsible for alllecture materials as well as readings,regardless of source.


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The 1971 Constitution agreed that the SupremeCouncil of Rulers shall be the highestlegislative (i.e. law-making) authority in theUAE.The Chief of State is the President.

Technically, the Supreme Council elects/re-elects apresident (from members of the Supreme Council)every five years.

The Supreme Council is made up of the Rulers of each Emirate.


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Decisions on substantive matters are taken bya majority of five, provided that this majorityincludes the votes of the Emirates of Abu Dhabiand Dubai. (Al Tamimi, citing Art. 49 of theConstitution) This gives Abu Dhabi and Dubai veto power over

any rulings. Veto: Latin for I forbid.

Basically, use of a veto blocks passage of a law.


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The Constitution provides for a 40-memberNational Assembly Members were initially all appointed by the

Emirates; in December 2006 there wereelections for half of the seats.

Two-year, renewable terms.The decisions of the National Assembly are advisory andneither the Cabinet nor the Supreme Council are obliged tofollow them. (Al Tamimi, p. 3)


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Federal Laws are made by the SupremeCouncil of Rulers. Approves laws presented by the Federal

Council of Ministers (or Cabinet) and theNational Assembly.While the making of laws on major issues isreserved to the Federal Government, local

authorities in the different Emirates areauthorized to issue Decrees regulating localmatters.

http://www.zu.ac.ae/library/html/UAEInfo/UAELaw.htm


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Part V of the UAE Constitution is headedLaws Issued by Decrees and containsthree articles (113, 114 and 115)concerning this topic.

This section is based on the UAE Constitution online at http://www.helplinelaw.com/law/uae/constitution/constitution04.php


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Should necessity arise for urgentpromulgation of Union laws betweensessions of the Supreme Council, thePresident of the Union together with theCouncil of Ministers may promulgate thenecessary laws in the form of decrees

Hence, Ministry regulations may appearin the form of decrees rather than laws.


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They shall have the force of law, provided thatthey are not inconsistent with the Constitution.

Such decree-laws must be referred to theSupreme Council within a week at the maximumfor assent or rejection. If they are approved, theyshall have the force of law and the UnionNational Assembly shall be notified at its nextmeeting.

Presumably, the decrees mentioned in our textreceived approval.


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The lowest tier is the Courts of FirstInstance where cases usually originate.The second tier of the Federal court

system consists of the Courts of Appeal Appellate jurisdiction: Where people may take a case decided

already at and appeal the judges rulings.

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On top is the Federal Supreme Court (Court of Cassation*) based in Abu Dhabi comprised of five judges Serves as the highest judicial authority

It has both appellate and original jurisdiction

i.e., it hears appeals of earlier cases decided in

lower courts, but a case can also have its firsthearing at Supreme Court level.* Cassation basically means the power to annul(cancel) a previous decision.

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Dubai and Ras Al Khaimah have this three-tiered system but theyoperate WITHIN each of those emirates; they are independent of the federal system.

(When the UAE developed a federal legal system, theindividual emirates were given the choice of joining it ormaintaining their own systems; Dubai and RAK kept theirsseparate.)

Dubai kept a separate military, the Dubai Defense Force, until1996

Source: http://news.bbc.co.uk/2/hi/middle_east/8382275.stm

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Each emirate maintain[s] its ownindependent police force. While allemirate internal security organs

theoretically [are] branches of onefederal organization, in practice theyoperate with considerableindependence.

Adapted from Country Reports on Human Rights Practices - 2002 , released by the Bureau of Democracy,Human Rights, and LaborMarch 31, 2003 (Bureau of Public Affairs, U.S. Department of State.)


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1) Civil cases Civil law: Generally non-criminal law, violation

of which is not punishable by imprisonmentlaw of propertycommercial lawadministrative law

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2. Criminal cases A crime is something seen as so harmful to societythat it is punished with imprisonment or worse.

Capital crime : punishable by death)N.B. In the UAE, A person may be imprisoned if s/he fails topay the amount set out in the judgment against him.

(Article 324 of the Civil Procedure Law, as cited in El Tamimi,p. 120)So a large fine is potentially tantamount to a jail sentence.


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Each emirate also maintains a parallel system of Sharia Courts(i.e., Islamic law) organized and supervised locally.

These deal with matters of Muslim personal issues such asmarriage, divorce, custody and inheritance.

In Abu Dhabi particularly, the Sharia courts may also reviewserious criminal cases, labor and other commercial matters presumably this is in cases where specific Islamic laws areconcerned..

According to a source outside our textbook, the UAEs Sharia courts are required to answer to theFederal Supreme Court. (Presumably, those in RAK and Dubai answer to those emirates SupremeCourts.)

Country ReportsonHuman RightsPractices- 2002 , releasedby the Bureauof Democracy, HumanRights, andLabor, March 31, 2003 (Bureau of Public Affairs, U.S. Departmentof State.)

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In the UAE (and unlike the West) there is no separation of religion andstateUAE Constitution Article 7 declares

Islam is the official religion Islamic Sharia the main source of legislation

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The extension of a Sharia ruling from anoriginal case to a new case due to asimilar underlying reason. Similar to a Western concept called precedent

discussed on the next slide.


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Precedent * A preceding similar case, or the law established or applied in

a preceding similar case.Source: Nolfi, Legal Terminology Explained , p. 11

In the West, often this becomes an authorized declaration of the

law Stare decisis : Latin for fixed gaze judges are generally

going to follow decisions made by others before them.If a judges interpretation survives an appeal, it generally becomes asolid precedent. A later judge feels safe following the previous

judicial interpretation.

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A precedent repeatedly followedbecomes well- established law. Therefore, by generally following precedent,

the law made by judges in deciding actual cases made the law common to all of England

In the US, this common law concept is often referredto as case law.

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Common/Case Law: Court decisionseffectively make law because of theirinterpretative function.Civil Law System: Courts do NOT havethe power to make law a judge is notbound by previous interpretations.


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Occasionally, English-languagetranslations of UAE laws refer tocommon law, but apparently this istheir way of saying civil law (asopposed to Sharia law.


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Discretionary Interpretation Discretionary interpretation allows a judge to make up his own mind

about how to rule on a case.In matters covered by specific legislation, the judge is forbidden to

do this.But in the absence of specific law, courts must adopt the generalprinciples of Islamic jurisprudence and justice.


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In applying general principles, a UAEcivil/criminal court judge is NOT boundby previous decisions (precedents) of

other courts/judges. So in UAE Criminal/Civil Law, a precedent set by

another court/judge is not necessarily bindingor even influential; a judge can interpret his own

way.

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In the UAE, judicial cases are reached byreferring to broad legal ideas/principles,and not by how others have decided

similar cases.

This reflects the influence of Al Majala

(discussed on the next slide)

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The Majalat Al-Ahkam Al-Adlia: The CivilCode of the Ottoman State Derived mainly from Hanfi Sect, compiled and

promulgated in Istanbul circa 1836 (commonera). It was applied in most Arab countries during

Ottoman rule

Afterwards, these newly independent statescontinued applying Al Majala until they issued theirown civil codes.

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Al Majala dealt with the principle of precedent by saying that eachcase should be judged on its own merits.But its also important that in the UAE, decisions of the FederalSupreme Court and other Appeals Courts are not commonlyavailable in classified form.

i.e., its tough for a UAE judge to have access to what precedentanother UAE judge has set.

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Increasingly, UAE nationals with degreesfrom recognized law/Sharia colleges arebeing appointed judges. A few Arab expatriate judges still serve in the

higher courts. US/UK/EU law firms may work as legal

consultants, but may not plead a case in a UAEcourtroom.

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These are set down in the Criminal Procedures Code Police must report arrests within 48 hours to the

office of the Attorney General (the seniorprosecuting official for the UAE or Dubai/RAK)

The Attorney Generals office has 24 hours to:Charge with a crimeReleaseOrder further detention (Remand) pending aninvestigation

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The Public Prosecutor may order thatdetainees be held for 7 days with the discretionto extend detention for another 14 days. Additional detention (up to 30 days) requires a

court order which can be granted only upon ashowing by the authorities of sufficient evidencethat the defendant committed the offense.

Adapted from Country Reports on Human Rights Practices - 2002 ,released by the Bureau of Democracy, Human Rights, and Labor,March 31, 2003 (Bureau of Public Affairs, U.S. Department of State.)


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This right is given under Article 28 of theFederal ConstitutionUsually invoked in civil cases Civil defendants may ask for same-day

disposition

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Criminal cases may start quickly butoften take a long time depending on: Seriousness of charges

Drug-related cases are reported to the PresidentThe Presidents office may also involve itself in casesfrom different emirates, or between a UAE nationaland non-UAE citizen.

Number of witnesses Availability of judges(cont.)

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Trials could last a substantial period of time, depending on the seriousness of the charges, number of witnesses, and

availability of judges. Rape casessometimes took more than 1 year to getto trial.

Adapted from Country Reports on Human Rights Practices -2002 , released by the Bureau of Democracy, Human Rights,and LaborMarch 31, 2003 (Bureau of Public Affairs, U.S. Department of State.)


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There is no formal bail system However, a court may release detainees who

deposit money or a passport as security

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No jury trials A case is decided by the judge(s)

The number of judges sitting for a case depends on the typeof crime alleged.

The number is usually three.

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Trials are public, except for casesinvolving: national security

Public morality

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If the defendant or prosecutor feel the verdict was incorrect and could bereversed upon review, they may appeal

the finding to a higher court. The higher court reviews the case and may

receive more and new evidence.It may change the verdict.

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Civil judgment: May be appealed within30 daysCriminal judgment: May be appealed

within 15 days.Grounds of appeal: Factual (i.e., some data was not taken into

consideration, or misinterpreted)

Legal (i.e., the law was somehow misapplied)Tamimi, p. 11-13.


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Material on the preceding slides will beused (along with materials drawn fromthe required readings themselves) on

Test 1.

Slides after this one will be handled on

Test 2.

Documents

MCM 321 Section 1 Power Point Slides Only as PDF(2)