Kuwait Court of Cassation principle number 14

Summary: - Articles 1 and 1 bis of Law No. 9 of 2001 concerning the Misuse of Telephone Communication Devices and Eavesdropping. Their import. - Those offences being accompanied by threats or extortion or the exploitation of images by any means to violate modesty, impugn honour or incite immorality and debauchery, in a manner capable of achieving the purpose intended by the offence, with knowledge thereof. Its effect: aggravation of the penalty. - Criminal intent in those offences. Assessment of its existence or absence. A matter of fact. The challenged judgment need not discuss it expressly and separately. The condition for this. Rule: The import of Articles 1 and 1 bis of Law No. 9 of 2001 concerning the Misuse of Telephone Communication Devices and Eavesdropping Devices, as amended by Law No. 40 of 2007, is that any of the offences criminalised by them, with its material and mental elements, is established when the perpetrator performs any of the acts provided for in the two aforementioned Articles—including taking or extracting an image of another by using a device or means of telephone communication or otherwise, without the permission or knowledge of the person depicted, or sending it to other persons. It aggravates the penalty if these acts are accompanied by threats or extortion or the exploitation of images by any means to violate modesty, impugn honour or incite immorality and debauchery, and the act is capable of achieving the purpose intended by the offence, with his knowledge of the effect of his activity in achieving that purpose. The existence or absence of criminal intent therein is a factual matter exclusively determined by the trial court without review, provided that its decision rests upon grounds supporting it. The judgment need not discuss expressly and separately the existence of each element, provided that the import of the facts and circumstances of the case set out therein is sufficient to indicate its existence. That being so, what the first-instance judgment, upheld on its grounds, supplemented and amended by the challenged judgment, set out—in its account of the facts of the case—as mentioned above—was that the appellant deliberately abused and defamed the victim by using his mobile telephone to transfer the latter’s photograph, without his permission or knowledge, from his father’s account and publish it on another account that he created in the victim’s name on the social media site Instagram, “the international information network.” He accompanied it by publishing images offensive to public morals and obscene expressions concerning others alongside the victim’s photograph, which resulted in a violation of his modesty and incitement to debauchery, knowing that it was a worldwide site available for everyone to view from within and outside the State of Kuwait, and intending others to view it. This establishes the two offences forming the subject of the two charges, with their material and mental elements. The criticism of it in this regard is therefore incorrect.