The Commercially Savvy Lawyer?: On Cultural Sensitivity

It was only a matter of time before Netflix had the Arab world up in arms over its progressive content.

As an alumnus of several pan-Arab TV companies HQ'd in Bahrain (Orbit, now OSN) and Qatar (Al Jazeera) respectively, I am no stranger to the kind of culture clashes that can arise when mixing Western media/TV with conservative Arab values. As an American-born, British-educated NY lawyer who spent a total of 16 years in the Middle East, I have seen my fair share of clashes between Western and Eastern cultures, which have played out not just on TV but in real life.

A few news stories emanating from the GCC (i.e. the six Gulf Cooperation Companies that include: Oman, Bahrain, Qatar, UAE, Kuwait, and Saudi Arabia) through the years have highlighted the incompatibility of progressive Western culture and traditional Arabian culture and laws:

• The 2010 "sex on the beach" scandal in Dubai where two Brits decided to copulate on a public beach at night and found themselves in jail, although they ultimately escaped jail;
• The scandalous 2014 episode at The Mall of the Emirates in Dubai where an Emirati woman challenged a scantily clad British lady, who, taking offense, stripped down to her bikini; and,
• The seemingly unjust way in which female rape victims are treated in many GCC countries.

Living in the GCC for as long as I have, having longstanding friendships with Arabs, writing about different aspects of life and law in the GCC, and, indeed, working on the documentary "High Heels in Arabia" about women in the GCC, which afforded me a window into the lives of woman in the GCC, I believe I can speak on these matters with a certain level of authority.

There is a curious phenomenon that happens to Westerners when they move to the Arab world and become "Expats" (i.e., economic migrants.) Many Expats find their lifestyles automatically uplevel to way above any level they could achieve back home. This in turn gives some Expats airs and graces and often an unspoken air of neo-imperialism. Worryingly, many Expats feel that the local laws do not apply to them (hence the first two scandals listed above) and are dismissive of local laws until they feel their bite.

Those who are plugged into Arab culture know that, indeed, pride in the Arabic language and culture, and a commitment to its preservation is alive and well, as Sultan Sooud Al Qassemi points out in his recent article, "English is gaining ground in the Arab world - at Arabic's expense." The interconnectedness of language and culture is beyond the scope of this article, suffice it to say that media is a reflection of society and as such, some of the "woke" content of Netflix has no place in the deeply conservative and traditional Arab world. Today (9/7), a special committee of the GCC has convened to call on Netflix to take the offensive content down or face legal consequences!

In 2010, I penned an article about the regulation of the satellite industry in the Middle East. One of the benefits of broadcasting via satellite was not just the reach but the lack of regulation of content. That said, there was a regional push-back on the kind of content that could/should be broadcast via satellite where the Arab League members, save Qatar and Lebanon, signed the "Arab League Satellite Broadcasting Charter" to outline the parameters of the kinds of content that should be aired:

"In February 2008, the Arab League met in Cairo and produced the Arab League Satellite Broadcasting Charter to provide guidelines for the ever-increasing number of free-to-air and encrypted satellite channels broadcasting in MENA (e.g. from 13 in 1993 to 400 in 2008). All Arab League states signed the Charter except for Qatar and Lebanon (decisions of the Arab League are only mandatory for those members who sign them). The Charter's aim is to provide 'the frameworks and principles required for organising broadcasting and audiovisual satellite reception in the Arab world.' The Charter sparked controversy because, although it advocates broad principles such as the right to 'express opinions, preserve Arab culture and promote cultural dialogue through satellite broadcasting' (Article 1) and requires compliance with 'religious and ethical values of Arab society and maintain its family ties and social integrity' (Article 6), it does have teeth as a non-compliant broadcasting entity risks losing its licence in its home country."

Living in the Arab world means adapting to those conservative values, at least in public. I have seen many people attempt and fail to introduce tokens of "progressivism" to Arabian life. One such attempt was by an anonymous writer for a Qatari paper who wrote about being gay in Qatar. That paper (I believe it was Doha News) was shut down within a year and had to reinvent itself online. Before that, I remember that Orbit had broadcast a film called "Threesome" on a Friday evening (many of the programmers were from Italy) that was pulled within minutes of being on. There is a zero-tolerance policy for explicit sexual content generally speaking and those who want to view such content would have to buy a VPN to access European or Asian content

Another episode that demonstrates the Arab world's sensitivity to certain "non-traditional" topics happened at the final iteration of "Made in Doha" in the last year of the Doha Tribeca Film Festival. In that series, there were two films that cause a furore in the local, Arabic press. One film was about a young woman who dressed as a boy to visit her mother's grave in Saudi Arabia. I saw the film at the festival; it was a heartbreaking and true story of a young girl who was unable to visit her mother's grave because men can only visit graves in Saudi Arabia. The story ended with the girl throwing herself on the dirt mound of her mother's grave. The filmmaker later told me that there was such outrage over the idea that a young girl would dress as a boy to get into a grave that they unleashed a tirade of abuse at her, including calling her a homosexual and crossdresser (insults in the Arab world.) The second film was a conversation between a young woman and her brother, who exiled himself to London, whom we discover is gay only when the sister recounts how she found explicit pictures of her brother and his best friend, who died in a car accident, that shed light on her brother's sexuality. The sister is unable to accept the brother's homosexuality and the story depicts the challenge of being gay and Arab. These films showed neither explicit sexual activity nor really any explicit expositions on being gay in Arabia or denouncements. Anyone (hint, hint, Netflix) with their ear to the ground, would have known that even a hint of homosexuality in their content broadcast to the MENA region would cause serious issues.

In fact, many content agreements between Arab broadcasters and Western content providers include "cultural sensitivity" clauses that stipulate that the content provider has to be alive to the cultural and religious values of the Arab world. It follows that any of the programs in the Netflix catalog available in the MENA region that include content that offends Arab values would not only be a breach of any contract Netflix would have with a distributor but also the regulator that licenses it.

There is so much to say about Netflix's misstep as regards the MENA region. Was it arrogance or some kind of cultural imperialism that led Netflix to the decision to broadcast "non-traditional" content into the MENA region, like the Expats who think that local laws don't apply to them? Was it thoughtlessness such that what is "non-traditional" in Arabia is "normal" in the West so they didn't even think about it? That is a problem - how can you do business on a cross-border basis and not be alive to cultural differences? Was it ignorance? It's hard to say that a global company like Netflix would not have cultural experts advising them on what they can and can't broadcast into certain regions. Actually, the regulatory lawyers handling Netflix in the MENA region have clearly failed miserably to advise Netflix of the risks involved in broadcasting sexually explicit or LGBTQ+ content to traditional Arab households. It's a problem.

What's the solution? Netflix has several options:

Option 1: Black out the offending content from the MENA region if possible;

Option 2: Stop broadcasting the content altogether everywhere;

Option 3: Stop broadcasting in the Arab world altogether; or,

Option 4: Set up a dedicated Netflix Arabia channel that creates content that suits the palette of the 476,377,851 potential subscribers to Netflix Arabia.

The Netflix in Arabia saga is the ultimate culture war. My money is on Arabia.