Kuwait Court of Cassation principle number 76

Summary: - The constitutional principle: no offense and no penalty except on the basis of a law, and no punishment except for acts subsequent to the entry into force of the law prescribing them. - Matters prohibited from being broadcast or rebroadcast and their prescribed penalties. Article 11 of Law 61 of 2007 concerning Audiovisual Media. - An applicant for a license for a channel and its operation must appoint a general manager for the channel. Reason for this. - A program's guest, visitor, or participant is not considered responsible for broadcasting or rebroadcasting. - The meaning of broadcasting and rebroadcasting. - Caution is required in interpreting penal laws, and departure from them through interpretation or independent reasoning is impermissible where the text is explicit. - The challenged judgment's conviction of the first appellant—the guest—of the two offenses of insult, he being a public official, and punishment by a fine. Error in applying the law requiring cassation. Rule: The Constitution was careful to entrench the principle of the legality of offenses and punishment by providing in Article 32 that "There shall be no offense and no penalty except on the basis of a law, and no punishment except for acts subsequent to the entry into force of the law prescribing them." The aforementioned Law No. 61 of 2007 specified in its second chapter the matters prohibited from being broadcast and the penalties prescribed for violations. Article 11, in its fourteen clauses, detailed the matters that the licensee is prohibited from broadcasting or rebroadcasting—that is, the company or sole proprietorship that has obtained a broadcasting license—which authorizes it to establish and operate a channel as stated in Article One of that Law. After Article Four provided that "The license applicant must appoint a general manager for the channel as its legal representative before government bodies or third parties, who shall be responsible for managing and operating the channel and the materials, programs, or news it broadcasts, Article 13 of the Law provided that "The channel's general manager, the producer and presenter of the media material, and every person responsible for broadcasting it shall each be punished by the penalties prescribed in Article 29, first paragraph, of Law No. 31 of 1970 amending certain provisions of Penal Code No. 16 of 1960, in the event of violation of the prohibition prescribed in Article 11/2 of this Law. Without prejudice to any more severe penalty prescribed by another law, each shall be punished: 1- By imprisonment for a term not exceeding one year and a fine of not less than five thousand dinars and not more than twenty thousand dinars, or either of these penalties, if he broadcasts what is prohibited in Article 11/1. 2- By a fine of not less than three thousand dinars and not more than ten thousand dinars for any other violation of this Law." That being so, the aforementioned Article 13, by its explicit wording and clear expressions, exhaustively identifies the persons to be punished in the event of violation of the prohibition prescribed in Article 11 of the aforementioned Law, through broadcasting or rebroadcasting programs and visual or audio materials of all types, or any part thereof, liable to impinge upon the matters specified in that article or the acts stated in its various paragraphs. They are the channel's general manager, the producer and presenter of the media material, and every person responsible for broadcasting it, considering the duties of each, whether those specified by law—as in the case of the channel's general manager—or those required by the nature of work in those channels or stations for other producers or presenters of media materials or those contributing to their broadcast by one means or another; that is, transmitting works or programs by electromagnetic waves via satellites or other means, whatever their description or nature, enabling the public to receive them, as stated in clause two of Article One of the Law. Accordingly, someone other than these persons, such as a guest, visitor, or participant in a program, who makes statements liable to impinge upon one of the matters detailed in the clauses of the aforementioned Article 11, and whose program or media material in which he participated is broadcast, cannot properly be considered responsible for its broadcasting or rebroadcasting as intended by the legislature, in light of the foregoing definition of broadcasting or of rebroadcasting, which is the reception and rebroadcasting of private channels from within the State of Kuwait for reception within Kuwait by modern technological means under a prepaid system, as stated in clause three of Article One. There is no dispute that broadcasting and rebroadcasting are both technical matters with which a person hosted or participating through a talk or the like in a program or material broadcast or rebroadcast has no involvement, and he is not considered responsible for them. Nor can he be considered a presenter or producer of media material in the sense intended by the legislature in the provisions of the aforementioned Law No. 61 of 2007. It is established that caution is required in interpreting penal laws and their expressions must not be burdened beyond what they can bear. Where the wording of the law is clear and unambiguous, it must be regarded as a true expression of legislative intent and may not be departed from through interpretation or construction, since there is no room for independent reasoning where the applicable text is explicit. Nevertheless, this does not preclude holding any of them criminally responsible for what he has done if it fulfills the elements of another offense punishable under another law. That being so, the challenged judgment departed from the foregoing view and convicted the first appellant of the two offenses of broadcasting a television program involving disparagement of the virtuous Companions and impairment of the victim's dignity while he was a public official, and punished him by a fine—fining him five thousand dinars—pursuant to Law No. 61 of 2007, which the Public Prosecution requested be applied. It therefore erred in applying the law, rendering it defective. The challenged judgment must consequently be quashed as regards the first appellant alone, not the second and third appellants, since the ground of appeal does not relate to them, without need to examine the remaining grounds of appeal submitted by the first appellant.