Kuwait Court of Cassation principle number 1

Summary: - The guarantee of freedom of opinion, the right to express it, and freedom of the press, printing and publication under the provisions of the Constitution and Law 3 of 2006 concerning Printing and Publication. This is the rule. The exception is: the prohibition on publishing anything liable to offend public morals, Article 21/3. Assessment thereof. A matter of fact. Its limit. - Inferring the existence of criminal intent in the offence of publishing material offensive to public morals. A matter of fact. Discussing it expressly and separately. Not necessary. The condition for this. - Publishing a photograph with a news report containing a hand gesture offensive to public morals. Constitutes the offence of publication offensive to public morals. This is not undermined by the appellants’ statements that the newspaper promptly deleted the photograph from the printed edition and apologised to readers in the following issue. The reason: this does not affect the existence of the offence or the presence of its legal elements. - The legal elements of the offence of publishing material offensive to public morals. They are complete upon publication and circulation of the newspaper among the public, regardless of the number of copies circulated. - The obligation of newspaper staff, before publishing the photograph constituting the incident—each within the limits of his work—to exercise accuracy and scrutinise it to verify that it does not contain anything offensive to public morals or any matters prohibited from publication or other laws. Rule: Whereas Articles 36 and 37 of the Kuwaiti Constitution guarantee freedom of opinion, the right to express it, and freedom of the press, printing and publication, in accordance with the conditions and arrangements prescribed by law, as affirmed by Article 1 of Law No. 3 of 2006 concerning Printing and Publication, and whereas the latter Law sets out in its third chapter the matters prohibited from publication as an exception to that constitutional rule, and provides in the third paragraph of Article 21 for the prohibition of publishing anything liable to offend public morals. The assessment of whether a publication contains anything liable to offend public morals is for the trial judge, according to what he infers from his understanding of the facts of the case, without review by the Court of Cassation, provided that he has not erred in applying the law to the incident. Likewise, inferring the existence of criminal intent in this offence from the facts and circumstances of the case is a matter exclusively for the trial judge, also without review. The judgment need not discuss it expressly and separately, provided that it sets out facts and circumstances indicating its existence. The court of fact—at both levels—and within its discretionary authority to understand the facts of the case, concluded, through acceptable reasoning consistent with the law, that the photograph published with the news report contained a hand gesture offensive to public morals, thereby establishing against each appellant the offence of which he was convicted, with its legal elements as defined in law. This is not undermined by the appellants’ assertion that the newspaper promptly deleted the photograph from the printed edition and expressly apologised to readers in the following issue. None of this affects the existence of the offence or the presence of its legal elements, since it is complete upon publication and circulation of the newspaper among the public, regardless of the number of copies thereof circulated. Before publishing the photograph forming the subject of the charge, the appellants, each within the limits of his work at the newspaper, were required to exercise accuracy and scrutinise the photograph to verify that it contained nothing offensive to public morals or any of the matters prohibited by the aforementioned Printing and Publication Law or other laws. This is an obligation imposed upon both of them by the first Law. Consequently, the arguments raised by the two appellants in this regard are unsound.