United Arab Emirates: Social Media Law: Memes

Meet Gowlessence, the latest beauty brand to pop up on your social media feed. Gowlessence produces cleansers, creams and serums that its customers swear make them look good on the outside, while also making them feel good on the inside. Gowlessence's demographic is millennials that justify their indulgence on "self-care" by investing in Gowlessence's promise of organic, cruelty-free products and lifestyle.

Gowlessence's advertising campaign for its new Self-Care Serum is still being devised. The majority of Gowlessence's sales in the previous year came from "click-throughs" and "swipe-ups" on its Instagram; following this success, the brand decides to invest heavily in posting like-worthy content. Gowlessence's marketing team come up with a three-pronged plan to deliver a beautifully curated profile to attract maximum sales.

Gowlessence intends to use reposted content that: (1) it's found on the internet, including other Instagram accounts (e.g. a "Winning Baby" meme congratulating itself on removing its makeup after a night out); (2) has been created by its followers (e.g. a happy customer glowing as a result of Gowlessence products); and (3) Gowlessence has paid its influencers to produce. This series of three articles will examine the challenges for brands running campaigns involving user-generated content.

Copyright in memes

Gowlessence's digital marketing team love posting memes. It's a way to humanise the brand, make it relatable, and show its followers that it has a sense of humour. Considering that most memes are derived from pre-existing works, Gowlessence wonders if its meme-posting violates the copyright of the authors of the original works. There are four categories of memes which Gowlessence uses on its page: viral pictures (such as Math Lady), viral videos (such as Baby Shark), GIFs (such as Shaq Shimmy) and screen captures of films/tv shows (such as pretty much any line from 30 Rock) - and as they all stem from original works, they all attract copyright.


Re-posting a meme doesn't necessarily amount to automatic infringement, as the UK provides an exception to copyright "for the purposes of caricature, parody or pastiche". This means that, theoretically, Gowlessence can (by re-posting memes) create parodies that re-use works protected by copyright without having to obtain permission from rightsholders - so long as such memes aren't posted for commercial purposes.

Fair dealing in the UK

The use of copyright works for parody is only allowed insofar as it can be considered "fair dealing". The test for "fair dealing" isn't binary, as it requires not only that any copying doesn't impact the rightsholder, but also that copying can only be done as much as is necessary for its purpose. As this test is subjective, it's not clear where the line for infringement is, as any copying (meme reposting) will come down to whether a substantial part of the work has been used.


One instance of case law from the UK, though not setting out a definitive test for measuring substantial copying, has outlined "substantial" as "determined by its quality rather than its quantity". Another instance has described the test as an assessment of the importance of the copied work - if an important part of a work is reproduced, the more likely that infringement has arisen, because a substantial part has been copied.

When it comes to the copying and distribution of the entirety of a work, such as a viral video or photograph, assessing infringement is more conclusive. However, with GIFs and film/tv screen captures, which often feature just a "snapshot" of a moment, it's more difficult to assert that "substantial copying" has taken place. Where the oft-used GIF of Shaquille O'Neill shimmying may well constitute a substantial part of the original advert from which it was taken, re-posting a screenshot of Liz Lemon from 30 Rock walking into a room and saying something pithy may not be a significant part of the episode from which it was taken - suggesting that copying the moment alone may not be substantial.

Fair dealing in the UAE

There is no explicit exception covering "fair dealing" in the UAE, nor is there one for parody. Where Gowlessence wants to post from its @GowlessenceUAE account, it should be aware that this area of the law is even less clear-cut than in the UK. The relevant copyright law does, however, provide that an author cannot prohibit a third party from using a "derivation...of the work for the purpose of criticism, discussion, or information". While this may leave the door open for @GowlessenceUAE to re-post memes, this exception is qualified by the fact that use of the author's work must be accompanied by the source and the author's name. Due to the difficulty in ascertaining the original owner of a meme, it may be more practical for @GowlessenceUAE to avoid memes on its page altogether.

Meme ban

If meme-posting in the UK previously left Gowlessence without fear of legal repercussions, then the EU (Brexit aside) may change that. In 2019, the EU signed off on an unpopular new copyright directive. This envisages the implementation of "content recognition technologies" to identify and remove infringing material - just like YouTube's ContentID system, but for the whole internet.

The directive requires that websites regulate copyrighted material that may feature on their platforms. This would place websites in a more active role, removing them as "mere conduits" and requiring them to "police" content posted. While this would make meme-hosting more onerous for websites and meme-posting more precarious for users, the law could be a chance for content producers to get the rights, money and recognition they are owed under copyright laws.

Next steps

Gowlessence is currently not worried about its meme-posting. When posting memes, in an ideal world, Gowlessence would get permission from the original content owner. Nonetheless, this is a near-impossible arduous task, as it's difficult to follow the chain of "meme-ownership" (as the meme will have probably bounced around Reddit and Tumblr before hitting Instagram and eventually making it to Gowlessence's feed). Instead, Gowlessence intends to continue posting memes with reliance on the "fair-dealing" defence. As for the new directive coming from the EU, the effect of the legislation brings a shift in responsibility and accountability - there's a low risk of Gowlessence being sued for re-posting a meme of a cat playing the piano, but rather it is the platforms on which the content is uploaded that will be concerned.

Furthermore, unless technology learns to identify humour, mockery and satire, there'll need to be a degree of human judgement involved in enacting the law's obligations - to ensure that content recognition solutions are proportionate and fair to both the copyright owner and the meme-poster. This means that while the new legislation poses a threat to memes, the varying success of YouTube's Content ID solution suggests that the relevant technology simply isn't available just yet.

Look out for the next article in this series on Social Media Law which considers the issues around user generated content.

Read the original article on GowlingWLG.com

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
19 Sep 2019, Seminar, Birmingham, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

8 Oct 2019, Seminar, Birmingham, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions