Digital marketing is using digital media such as television,
radio, internet, mobile devices and digital signage (indoor and
outdoor) for marketing activities. Typically, there are usually two
scenarios; first digital communications of marketing content to the
mass media and public as a whole and, second, targeted
communications to specific individuals to relay marketing content.
Examples include internet banner advertising, email newsletters,
advertisements in social media websites and text / SMS mobile phone
messages all of which allow businesses to reach consumers in a
timely, relevant, personal and cost-effective manner.
Some forms of digital marketing using online media can target
members of the public based on their prior search and website visit
histories, amongst other means. While members of the public
generally consider that they benefit from this targeting, the
concern for privacy in terms of data collection is on the rise. For
the advertiser, other matters such as protection and use of third
party intellectual property rights, compliance with local laws and
contractual terms need to be considered.
Privacy and data protection
The relevance of privacy in digital marketing is the use of
personal information in marketing activities. A typical example of
how this may arise is when users enter their personal information
on certain websites which offer services that the user is
interested in using. Options are then available to the user on
whether they consent to use of the personal information they have
provided and, if they have consented, the extent to which they
allow such use.
There is no federal data protection legislation in the UAE, and
what is applicable, is drawn from the Penal Code and Constitution
where the concept of secrecy is protected. The phrase
"personal data" is not used and neither does the Penal
Code distinguish or place additional obligations on special
categories of data such as sensitive personal data. In this
respect, some guidance may be sought from Dubai International
Financial Centre ("DIFC") specific laws under the DIFC
Data Protection Law 2007 which is limited to the jurisdiction of
the DIFC. Under this law, there are restrictions on how personal
data may be process and the purposes for which it can be
processed.
Based on the current laws in the UAE, there is quite a wide margin
for advertisers to use the personal data obtained online for
digital marketing. However with subjective elements of what
constitutes a "secret", it may not always be clear cut as
when "personal data" is or is not a "secret".
In cases where the advertiser is established and operates from the
DIFC, then the DIFC Data Protection Law applies.
Intellectual property
The UAE is a member of the World Trade Organization
("WTO") and is obliged to comply with the Agreement on
Trade – Related Aspects of Intellectual Property Rights
(TRIPS) which sets out minimum standards for the protection of
intellectual property. The rights which are likely to be applicable
in digital marketing are trademark, copyright and the related right
of domain names.
Trademarks
In most forms of marketing, the aim to capture the attention of the
public is normally through a brand that is represented by a
trademark. The advertiser may or may not be the trademark owner.
Where it is not the trademark owner, caution would have to have
been exercised with regards to the context in which the trademark
is used and whether a license is required from the trademark owner
if the use is such that it falls within the exclusive rights of the
trademark owner.
Copyright
This right exists in a wide range of works such as literary works,
musical works, software, photos, videos and artistic works which
would form the content of the marketing materials. Like trademarks,
the advertiser may or may not be the copyright owner and similarly
when the advertiser is not the copyright owner, there should be
care exercised in using such works in order to avoid a claim for
copyright infringement. Where the advertiser wishes to, for
example, reproduce a photograph or video in its marketing content
which is not created by himself, a license is normally
required.
Domain names
Domain names are used by organizations to enable users to locate
them on the internet and as such, often incorporate the trademark
of the organization. Securing a domain name does not vest any
proprietorship rights in the domain name but is rather a license
from the authorities to use the domain name. For some domain names
such as those ending with .co.ae and .net.ae, one of the
requirements is that the applicant should also be the applicant or
registrant of a trademark. In the UAE, the responsible authority is
UAEnic which is the body for registering domain names. Recently,
the UAE Telecommunication Regulatory Authority ("TRA")
launched one of the first non-English top level domain name under
.emarat where TAG-domains provide IDN (International Domain Names)
in Arabic script which was approved by ICAAN (Internet Corporation
for Assigned Names and Numbers).
Compliance with local laws
A key issue is the regulatory policy issued in July 2010 by the
Telecommunications Regulatory Authority ("TRA") in
respect of Unsolicited Electronic Communications ("the Spam
Policy" – see Law Update Issue 232, August
2010).
Consumer protection
Other laws which would need to be considered by advertisers include
the Federal consumer protection laws in the UAE where suppliers may
not promote goods or services in a misleading way. Whilst the
consumer protection provisions apply to suppliers, advertisers
should take measures to ensure that they are not engaging in the
promotion or advertising of any counterfeit, spoiled or misleading
goods or services that would harm the interests or health of
consumers during normal use. Advertisers should also take care to
ensure that the claims they make about products and services are
true.
Content
Another law which would be relevant concerns publication of
content. Entities operating a website accessible to the UAE
residence will be subject to UAE laws which regulate the content of
media communications of all types. Among the main restrictions on
content in advertising which are relevant are matters which:
- Violate the sanctity of public decency or insult to the youth or promotes destructive principles.
- Contain pictures or drawings in brochures or advertisements, which contradict public decency or could result in misleading the public.
- Are advertisements for medicines and pharmaceutical products unless permission is obtained from the Ministry of Health.
Given that there are several applicable laws in the UAE which may result in liability to parties engaging digital marketing, it would be prudent for parties to include in the contractual terms between themselves the extent to which they agree to be liable for.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
