Kuwait Court of Cassation principle number 77

Summary: - Articles 36 and 37 of the Constitution and 1 and 11 of Law No. 61 of 2007 concerning Audiovisual Media. Their import: prohibition of broadcasting anything that would disclose what takes place in a meeting or what is recorded in documents, instruments, decrees, or any papers or publications whose confidentiality or non-publication is prescribed by the Constitution or any law, even if what is published about them is true. The rationale: safeguarding the confidentiality prescribed for them by the Constitution or the law. - Assessment of whether broadcasting or rebroadcasting involves acts prohibited by the ninth paragraph of Article 11 of Law No. 61 of 2007 concerning Audiovisual Media. It rests with the trial judge, without review thereof by the Court of Cassation. The condition for this. Rule: Whereas it is apparent from the provisions of Articles 36 and 37 of the Constitution and Articles 1 and 11 of Law No. 61 of 2007 concerning Audiovisual Media that the constitutional principle is freedom of audiovisual broadcasting and the exception is restriction, and the exception may not erase, encroach upon, or suspend the principle, its effect being confined to the limits stated therein; and permissible broadcasting is that which does not include any acts enumerated in the paragraphs of Article 11 of the aforementioned Law No. 61 of 2007, whose underlying basis is guaranteed by the Constitution and the law. If broadcasting does not exceed those limits, there is no basis for holding the person responsible for it accountable as having committed one of the acts criminalized by the aforementioned law in Article 11 thereof. That Article, in its ninth item—which the respondents were alleged to have violated—prohibited broadcasting anything that would disclose what takes place in a meeting or what is recorded in documents, instruments, decrees, or any papers or publications whose confidentiality or non-publication is prescribed by the Constitution or any law, even if what is published about them is true, so as to safeguard that confidentiality which the State's Constitution or laws considered necessary to confer upon meetings, instruments, documents, and publications containing information or data that it was considered should not be broadcast or published, because all of this serves the public interest. Assessment of whether broadcasting or rebroadcasting involves acts prohibited by the aforementioned ninth paragraph rests with the trial judge, who deduces it from his understanding of the facts of the case and his assessment of the content of the broadcast. He may ascertain the true nature of what was disclosed through audiovisual broadcasting, without review thereof by the Court of Cassation, provided that he has not erred in applying the law to the facts. Moreover, Law No. 61 of 2007 concerning Audiovisual Media did not contain a provision similar to that contained in Law No. 3 of 2003 concerning Printing and Publication, in Article No. 21, whose second paragraph prohibits publishing what the courts or investigative authorities determine to be confidential.