Kuwait Court of Cassation principle number 207

Summary: - Freedom of thought and expression of opinion. A constitutional principle. Including the right of criticism and freedom of the press, printing and publication. Prohibition is the exception. The exception may not erase, encroach upon or disable the principle. Its effect. Within the limits in which it was prescribed. - Prohibition on publishing news of the bankruptcy of merchants, commercial companies, banks or money changers, except with permission from the competent court. Article 21/5 of Law No. 3 of 2006 concerning Printing and Publication. Assessment thereof. A matter of fact. The limit thereof. - The published news item’s circulation of information about lawsuits pending before the courts, as relating to public economic and legal affairs. No grounds for criminalization. Rule: It is apparent from Articles 36 and 37 of the Kuwaiti Constitution—as affirmed by Articles 1 and 27 of Law No. 3 of 2006 concerning Printing and Publication—that the constitutional principle is freedom of thought and expression of opinion, including the right of criticism and freedom of the press, printing and publication, and that prohibition is the exception. The exception may not erase, encroach upon or disable the principle; rather, its effect is confined to the limits in which it was prescribed. As the explanatory memorandum to the aforementioned Law rightly expressed it: “Guaranteeing freedom of expression is a fundamental principle of the democratic system, just as its regulation is unavoidable in a State governed by law. However, such regulation must not be a reason for restricting it in a manner that impedes its exercise or disables its substance.” That being so, although Article 21 of the same aforementioned Law, in its fifth paragraph, prohibited publishing news of the bankruptcy of merchants, commercial companies, banks or money changers except with special permission from the competent court, the assessment of whether publication involves what the aforementioned fifth paragraph prohibits, and the determination of whether the aforementioned offence is established, depend on what satisfies the trial court from its understanding of the facts of the case. The Court of Cassation has no power of review over it in this regard so long as it has not erred in its assessment or in applying the law to the facts of the case. That being so, and it being apparent from the challenged judgment that the trial court at both levels—within the scope of its discretionary power—concluded by sound reasoning that the contents of the news item forming the subject of the charge were not among those for which the fifth paragraph of Article 21 of the aforementioned Law No. 3 of 2006 required special permission from the competent court before publication, because it contained information about lawsuits pending before the courts, which the press is entitled to circulate as relating to public economic and legal affairs, the incident therefore falls outside the scope of criminalization, and the appellant’s contention in this regard is incorrect.