Article 77 in the 'New Media Law': No criminal liability for good-faith journalists

- The Public Prosecution is exclusively responsible for investigation, prosecution, and filing charges, while the Criminal Court is competent to hear criminal cases.

- Penalties consist of fines without imprisonment... Administrative sanctions range up to final closure.

- The court may order seizure, revocation of licenses, and bans on appearance, publication, or broadcasting for up to one year.

- Fines for legal entities are doubled... The media’s right to information is guaranteed within defined parameters.

As a prominent professional safeguard, Article 77 of the new Media Law stipulates that practitioners of journalistic media professions shall not face criminal liability for what they publish or broadcast while exercising their licensed activities, provided that good faith is demonstrated, professional standards of accuracy and objectivity are adhered to, due diligence is exercised to verify the accuracy of information, and their belief in its accuracy existed at the time of publication.

This provision thus protects responsible professional journalistic work, without extending to insults, defamation, or the intentional publication of false information.

The explanatory memorandum, in its explanation of the article, stated that this provision constitutes one of the most important grounds for exemption in the field of media work, as it is essentially an application of the principle of lawful exercise of rights established in general rules. It does not merely negate punishment; rather, it removes the unlawful nature of the act. It noted that anyone practicing a licensed media profession is exercising a right guaranteed by the Constitution and regulated by law, and it is not permissible to hold them accountable for matters that are intrinsic to the performance of this right. The basis for this exemption here is that the media practitioner must adhere to the boundaries set by the law, ensuring their practice remains within the scope of the issued license, that good faith is present (i.e., no intent to insult or defame), and that professional standards are observed, including striving for accuracy and objectivity and exercising due diligence to verify information before publication.

Conversely, the law organized a graduated system of violations and penalties. The penalties stipulated in Chapter Thirteen all consist of fines, without imprisonment. They cover engaging in media activities, advertising, and promotions, as well as competitions and giveaways without a license, failing to disclose advertising content, publishing misleading information to consumers, receiving funding with the intent to influence public opinion without a license, and possessing broadcasting equipment without approval, along with other violations specified by the law.

Administrative sanctions, on the other hand, range from warnings and reprimands to financial penalties, up to administrative closure, followed by the final closure of unlicensed establishments and the seizure of their devices and equipment, while preserving the rights of bona fide third parties and guaranteeing the right to appeal and challenge decisions before the Administrative Court.

The law authorized the court, depending on the circumstances, to confiscate devices and proceeds, remove content, block websites or accounts, revoke licenses, or close establishments. It also empowered the court to prohibit the convicted person from appearing, publishing, or managing media accounts for a period not exceeding one year. Furthermore, it established that legal entities are liable to double the fine, and increased penalties in cases of recidivism.

Within the framework of general safeguards, the law affirmed the right of media institutions to obtain information and data from government entities in accordance with the law, while respecting confidentiality, national security, privacy, and the secrecy of investigations. It obligated the Ministry of Media to support the sector through training and qualification programs, encourage innovation and research, and raise awareness regarding professional and ethical responsibility.

Article 73 stipulated that the Public Prosecution, and no other authority, is exclusively competent to investigate, prosecute, and file charges for all crimes stipulated in this law.

Article 74 further stipulated that the Criminal Court of the General Court is competent to hear all criminal cases stipulated in the law, with judgments subject to appeal before the Court of Appeal.

Chapter One, covering Articles 1 to 3, addresses the fundamental concepts necessary for implementing the law’s provisions. Among these, it clarifies that the concept of electronic commercial media or advertising services is limited to activities involving the promotion of others’ interests. Consequently, an individual promoting their own business, products, or services through their own electronic channels does not fall under this definition. However, this exception is conditional: the website, application, or account must not be designated or used, wholly or partially, to conduct regular advertising activities that exceed what is necessary to introduce the enterprise or display its products or services for sale.

Chapter Four (Articles 18 to 23) contains provisions related to newspapers and publications, organizing journalistic and printing work on the basis of professional responsibility. It mandates licensing for the issuance of newspapers and the practice of printing, publishing, distribution, and translation activities. It requires that the editor-in-chief and deputy editor(s) hold Kuwaiti nationality, be at least 21 years old, possess full legal capacity, have a good reputation, and hold a university degree or have practiced the profession regularly for at least five years, while exercising actual supervision over the newspaper.

The law subjects publications to a system of notification, approval, and deposit. It requires notifying the Ministry prior to printing and obtaining prior approval for books and non-periodical publications, with a decision rendered within 30 days. It establishes the right to appeal and challenge rejection decisions, mandates the inclusion of publication details on the material, and requires depositing two copies with the Ministry and the Kuwait National Library before circulation. It also regulates imported publications and the printing of foreign newspapers within the country.

Chapter Five (Articles 24 to 27) covers provisions related to audiovisual media, aiming to regulate broadcasting and retransmission activities. It mandates independent licensing for each channel and coordination with the Public Authority for Communications and Information Technology regarding satellite space and frequencies. It requires the appointment of a general manager for each channel, who serves as its legal representative and is responsible for its content. It permits licensed retransmission companies to publish or broadcast news reports from foreign channels’ correspondents and news agencies within the country to those channels, provided they obtain a license from the Ministry of Information. It also subjects the possession and importation of broadcasting equipment to prior approval from the Ministry of Information and the Public Authority for Communications and Information Technology. Additionally, Chapter Six (Articles 28 and 29), under the title “Provisions Related to Broadcasting and Retransmission Technical Services,” addresses the technical aspects of the broadcasting system.

Chapter Nine (Articles 38 to 41) regulates the operations of news agencies, newspapers, and Arab and foreign channels and their correspondents within Kuwait. It requires them to obtain licenses to open offices and accredit correspondents and representatives, with decisions on applications rendered within 60 days. Failure to issue a decision within this period is considered a rejection of the application. Licenses are valid for two years and are renewable. The law obligates these media outlets and their staff to adhere to the content standards established for national media. Furthermore, it grants the Ministry of Information the authority to issue warnings to the representative, correspondent, or person responsible for the outlet, or to cancel the license and close the office, depending on the severity and recurrence of the violation. Cancellation decisions are subject to appeal and judicial review.

The law leaves the matter to the discretion of the competent ministry based on the severity and recurrence of the violation. This exception exists because the violation occurs via a medium broadcasting from within the country to abroad, and its continuation would cause irreparable harm. Therefore, it was deemed inappropriate to delay intervention until a final judgment is issued.