Kuwait Court of Cassation principle number 71

Summary: - The constitutional principle is freedom of audiovisual broadcasting. Articles 36 and 37 of the Constitution and 1 and 11 of Law No. 61 of 2007 concerning Audiovisual Media. - Permissible criticism. Its nature. Article 11 of Law No. 61 of 2007. - Criminal intent in the offence of audiovisual broadcasting or rebroadcasting. It exists if the words and expressions directed at the victim are inherently disgraceful or liable to infringe persons’ dignity or lives, or disclose their secrets, thereby disparaging them, offending them and degrading their dignity. - Determining the true nature of words and expressions that infringe dignity or lead to disclosure of the bankruptcy of merchants or commercial companies is for the trial judge, without review by the Court of Cassation. Limit thereof. - The challenged judgment’s demonstration that the expression in the media material broadcast on the news ticker forming the subject of the charge was no more than a true report that a bank had filed a complaint seeking a declaration of bankruptcy of the civil claimant company—not something disclosing its actual bankruptcy—and that no intent to defame or disparage the victim company or degrade its dignity was established. Sufficient to support its acquittal. Disputing this is a factual argument concerning the court’s authority to assess the evidence. Impermissible before the Court of Cassation. Rule: Articles 36 and 37 of the Constitution and 1 and 11 of Law No. 61 of 2007 concerning Audiovisual Media show that the constitutional principle is freedom of audiovisual broadcasting, and restriction is the exception. The exception may not erase, encroach upon or suspend the principle; its effect is confined to the limits in which it appears. Permissible broadcasting is that which does not involve affronting the Divine Being, the angels or the Holy Quran; inciting the overthrow of the system of government in the country; attacking the person of His Highness the Emir of the country; disparaging or showing contempt for the State’s Constitution; offending public morals or inciting violation of public order; infringing persons’ dignity, lives or religious beliefs or disclosing their secrets; undermining confidence in the country’s economic situation; disclosing the bankruptcy of merchants, commercial companies, banks or money changers without special permission from the competent court; or other matters enumerated in Article (11) of the aforementioned Law No. 61 of 2007, whose underlying principle is guaranteed by the Constitution and the law. If broadcasting does not exceed these limits, there is no basis for holding the person responsible for it accountable as having committed one of the acts criminalized by Article (11) of that Law. Criminal intent in the offence of audiovisual broadcasting or rebroadcasting infringing persons’ dignity exists only if the words and expressions directed at the victim are inherently disgraceful or liable to infringe persons’ dignity or lives or disclose their secrets, thereby disparaging them, offending them and degrading their dignity. The principle is that determining the true nature of words and expressions that infringe dignity or lead to disclosure of the bankruptcy of merchants or commercial companies depends on what satisfies the trial judge from his understanding of the facts of the case, and his inference of the meaning of those words and expressions and assessment of their purposes and aspects. The Court of Cassation exercises no review over this, provided he has not erred in applying the law. Nor may the court be criticized for acquitting on the basis of a possibility it considered more likely, on the contention that other possibilities might appear valid to others, since the entire matter turns on its judge’s conscience and what satisfies him, provided he bases his ruling on supporting reasons. That being so, the court—at both levels—within its discretionary authority, concluded, on a reasonable understanding of the facts and acceptable reasoning, that the expression in the media material broadcast by the respondent through the news ticker forming the subject of the charge was no more than a true report that a bank had filed a complaint requesting a declaration of bankruptcy of the civil claimant company. Its wording did not disclose that the company had actually become bankrupt, and this report was made within its legal framework in exercise of freedom of expression and opinion. It was not established that the respondent intended to defame or disparage the victim company or degrade its dignity. What the judgment stated above suffices to support its acquittal. Accordingly, what the appellant in his capacity—as civil claimant—raises in this respect is no more than a factual argument concerning assessment of the evidence and the trial court’s authority to weigh the elements of the case and derive its conviction, which may not be raised before the Court of Cassation.