Kuwait Court of Cassation principle number 186

Summary: - Criminal intent in the crime of offending decency and public morals through audiovisual broadcasting. General intent with its 2 elements of knowledge and volition. Its existence: where the scenes, images, gestures, statements, words, phrases or drawings broadcast include material liable to offend decency and public morals, thereby establishing the offender’s knowledge. Inferring the existence of that intent is a matter of fact. Express and separate discussion of it in the judgment is unnecessary. The condition for this. An example concerning the establishment of the crime against both the programme presenter and the channel’s general manager. - A plea denying criminal intent or disputing its existence on the ground that the 2 appellants were exercising their right to broadcast events and phenomena occurring in society, thereby rendering their act permissible. Unacceptable. Reason: a right-holder’s exercise of his right may not involve offending decency or public morals. Example. - The channel obtaining a broadcasting licence. Its necessary consequence: its obligation to respect the law, public order and public morals. Article 8 of Law 61 of 2007 concerning Audiovisual Media. Rule: It is established that criminal intent in the crime of offending decency and public morals through broadcasting over visual or audio media channels exists whenever the scenes, images, gestures, statements, words, phrases or drawings broadcast include material liable to offend decency and public morals, so that the offender’s knowledge is established. The law does not require specific intent for this crime; it is constituted by the existence of general intent with its 2 elements—knowledge and volition. Ascertaining the existence or absence of this intent from the facts and circumstances of the case falls within the trial court’s competence, without review, so long as the implications of those facts and circumstances are not inconsistent with that inference. The judgment need not discuss it expressly and separately so long as it sets out facts indicating it. The challenged judgment stated that the first appellant, a female programme presenter on ...... television channel, and the second, the general manager of that channel, broadcast a television programme containing phrases liable to offend decency and public morals over the aforementioned visual channel,, and the trial court—within its discretionary authority—concluded, through sound reasoning and acceptable substantiation, that broadcasting the programme that was the subject of the charge included phrases liable to offend decency and public morals, thereby establishing the crime of which the judgment convicted the 2 appellants. This is not undermined by their contention that criminal intent was absent on their part and that they were carrying out their work and exercising their right to broadcast events and phenomena occurring in society, thereby rendering their act permissible, since a right-holder’s exercise of his right may not involve offending decency or public morals. If he exceeds this limit, he must be punished for it as constituting the crime of offending public morals through television or radio broadcasting, which the law criminalises. Accordingly, Article 2 of the aforementioned Law No. 61 of 2007 provides that broadcasting activities may be carried out after obtaining a broadcasting licence issued in accordance with this Law. Article 8 then provides that the broadcasting licence must include the channel’s name and the purpose of its establishment and must, in particular, include respect for the law, public order and public morals. Consequently, the challenge to the judgment in this regard is unfounded.