Kuwait Court of Cassation principle number 78

Summary: - Broadcasting activities may not be practised without first obtaining a licence therefor. Article 2 of Law No. 61 of 2007 concerning Audiovisual Media. - The licence applicant must appoint a general manager of the channel as his representative. His responsibility for managing and operating the channel and for the material, programmes, or news it broadcasts. Article 4 of Law 61 of 2007 concerning Audiovisual Media. The final paragraph of Article 71 of 2007 of the same law. Its import. - Retention of the channel's records and its financial position. Provided for by Article al-Sadah of the Executive Regulations of Law No. 61 of 2007 concerning Audiovisual Media, issued by Minister of Information Decision No. 9 of 2008. - Responsibility of the general manager for any violation falling within the scope of the provisions of the law and its Executive Regulations. The basis thereof. Its effect: the capacity of the accused in the incident forming the subject of the charge is essential. - The challenged judgment's departure from this and its conviction of another person without evidence upon which reliance may properly be placed warrant its reversal and a judgment of acquittal. Rule: Article No. 2 of Law No. 61 of 2007 concerning Audiovisual Media provides that: (Broadcasting activities may be practised after obtaining a broadcasting licence issued in accordance with the provisions of this law.). Article Four thereof provides: (The licence applicant must appoint a general manager of the channel as his legal representative before the Ministry, other government bodies, or third parties, who shall be responsible for managing and operating the channel and for the material, programmes, or news it broadcasts....). The final paragraph of Article Five of the same law provides that: (Without prejudice to the provisions of Law No. 15 of 1960 concerning Commercial Companies and the laws amending it, the Ministry shall appoint an auditor to audit and state the financial position of the accounts of the establishment or company licensed to broadcast, in accordance with the rules and controls issued by a decision of the Minister.). Minister of Information Decision No. 6 of 2008 was issued promulgating the Executive Regulations of Law No. 61 of 2007 concerning Audiovisual Media, and provided in Article Six thereof that: (The licensee must maintain regular records of the channel's accounts and financial position, provide them to the Ministry upon request, and enable the auditor appointed by the Ministry to inspect them and any documents relating thereto that he requests.). Whereas Article 13 of the aforementioned Law No. 61 of 2007 provides in its first paragraph that: (Each of the channel's general manager, the preparer and presenter of the media material, and every person responsible for broadcasting it shall be punished...), through the remainder of that paragraph, and then continues as follows: (Without prejudice to any more severe punishment provided for by another law, each of them shall be punished as follows: 1– .... 2– By a fine of not less than three thousand dinars and not more than ten thousand dinars for any other violation of the provisions of this law, and accordingly the general manager shall be responsible for any violation falling within the scope of the provisions of the law and its Executive Regulations.). That being so, the capacity of the accused in the incident forming the subject of the charge is essential. It is established in the papers, according to the licence issued by the Ministry of Information—Press and Publications Sector—a copy of which is attached and which is dated 15/5/2008, that the licence term is ten years commencing on 5/8/2008, that the name of the licensed company is ....................., and that the manager responsible for the ..... satellite channel is .................., which negates the accusation against the accused appearing in the case, ....................... . The papers contain no evidence upon which reliance may properly be placed to convict him, particularly since the papers establish that the broadcasting licensee, ......................., appointed another person as general manager of the channel as its legal representative before the Ministry and other government bodies. This excludes the appellant's responsibility for failing to enable the auditor appointed by the Ministry to inspect the accounts and the documents relating thereto, especially as it has not been established that the accused contributed to or participated with the general manager in committing that incident by any means. Since the appealed judgment departed from this view and concluded by convicting the accused appellant of the charge brought against him, it warrants reversal and a judgment acquitting him thereof.