Consultations Should Ensure Protection for Freedom of Expression
May 15, 2013
Kuwait’s prime minister deserves praise for spiking this flawed draft law, at least for now. As currently drafted, it would create new red lines for the media and close down the space for public debate, reversing the trend toward greater openness that has earned Kuwait praise.
Sarah Leah Whitson, Middle East director

(Beirut)– Kuwaiti authorities should amend a proposed new press law that would increase state control of the news media and further curtail the right to free speech. The draft should be revised to protect free speech, consistent with requirements under international law, not curtail it, Human Rights Watch said.

The government proposed a draft Unified Media Law on April 8, 2013. It is intended to replace both the 2006 Press and Publication Law and the 2007 Audio-Visual Media Law. Following its adoption by the government, the Kuwaiti parliament was to consider the new legislation in May. But following objections by the news media and civil society, Prime Minister Sheikh Jaber al-Mubarak said on April 24 that the government will allow time to consult with journalists and editors.

“Kuwait’s prime minister deserves praise for spiking this flawed draft law, at least for now,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “As currently drafted, it would create new red lines for the media and close down the space for public debate, reversing the trend toward greater openness that has earned Kuwait praise.”

The draft law breaches international standards protecting free speech, Human Rights Watch said. It would give Kuwait’s Information Ministry excessive power to curtail speech, allowing limitations beyond speech directly inciting violence or other crimes. It would also appear to create what would amount to state licensing for all media outlets, including electronic media, allowing the government to reject applications by new media organizations without providing any reason. There should be no state licensing of the media except with respect to the allocation of broadcast frequencies, Human Rights Watch said.

Some of the draft’s provisions violate international law by criminalizing political comment, enabling the authorities to prosecute people on charges such as “insulting” public officials, “harming relations” between Kuwait and other states, “disrespecting” the constitution, or “offending the emir.” Such offenses would incur fines of up to 300,000 Kuwaiti dinars (US $1 million). Speech or writing deemed offensive to God, the Quran and Islam would be punishable by up to 10 years in prison.

The government’s submission of the draft law came during a crackdown on free speech. In recent months, the government has prosecuted opposition politicians, online activists and journalists on charges such as “offending the emir.”

Tension between the government and its opponents has intensified since June 2012, when the emir, Sheikh Sabah al-Ahmad al-Sabah, suspended parliament for a month, and the Constitutional Court then ordered its dissolution. In October, the emir amended Kuwait’s electoral law in the face of criticism from political groups, who said that any changes in the law should be made by a new parliament.

The emir called new national elections for December 1, which were carried out despite an opposition boycott. In the period before the election, security forces used teargas and sound bombs to disperse opposition demonstrators, and in late October the government briefly banned all protests.

International law recognizes freedom of expression as a fundamental human right, essential to the effective functioning of a democratic society and to individual human dignity. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), a human rights treaty that Kuwait ratified in 1996, guarantees the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

The United Nations Human Rights Committee (UNHRC), the treaty-monitoring body that provides the definitive interpretation of the ICCPR, has stated that, “All public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition,” adding that there should be “uninhibited expression” in public debate about such figures. 

“Any press law should promote free speech and the free flow of information so essential to any democratic society, not throttle reporting and debate as Kuwait’s draft law would do,” Whitson said. “The government should use the consultation period the prime minister announced to radically revise the draft and transform it into a law that protects and promotes free speech.”

Please see below for a detailed assessment and recommendation on the draft press law.

Key Concerns and Recommendations:

Registration

  • Articles6, 10 and57 wouldimpose an opaque registration process. It would require those seeking to establish new media outlets, including newspapers, to prove that they have extensive financial assets – up to 1 million Kuwaiti dinars (US $3.5 million), depending on the type of media – and to pay a hefty “security deposit” that could reach 300,000 Kuwaiti dinars.

    International standards, including those set out by the UNHRC, strongly discourage general state licensing of media outlets and of individual journalists. Although the government will need to allocate limited bandwidth to broadcast media, this should be done in a transparent, simple and non-discriminatory manner.

    These articles would also negatively impact small media and inhibit media plurality and diversity, Human Rights Watch said.

    These articles should be amended to remove any requirement for any media outlet to register and be approved by state authorities, beyond the need for broadcast media to register to be allocated broadcast frequencies. These articles should also be amended to provide a clear, transparent, and accountable registration process for allocating the frequencies and to eliminate overly burdensome financial requirements and security deposits.

 

  • Under articles 7 and 55, the Information Ministry could deny permission to establish a print or online publication, radio station, or TV station without providing a reason. Furthermore, the application would be considered denied if the ministry does not respond within 90 daysof submitting the application.

    These stipulations should be removed along with any requirement for the media to register. The article should also be amended to require the Information Ministry to providea detailed written statement of reasons in any case where it refuses permission for a bandwidth allocation and to allow the applicant the opportunity to correct any defects in its application and to challenge any refusal by the ministry in court.

 

Supervision

  • Under articles 14, 25 and 35, the Information Ministry would appoint auditors to examine financial records and accounts of newspapers and radio and television channels, to be based on executive regulations to be decreed by the information minister. These articles would give the government wide ranging and disproportionate powers over media finances, especially for privately owned media. They should be amended to state that ministry auditors could only examine records of media outlets that receive public funds.

 

The future ministerial executive decree should also require ministry auditors to visit the offices of newspapers and channels only when there are justifiable reasons and during normal business hours, and to provide appropriate advance notice to preclude the use of such visits for harassment.

 

  • Provisions 1, 5, 9 and 10 of article 33 and Provision 1 of article 41 areoverly broad and intrusive and invite governmental abuse. For instance, under provision 1 of each of these articles, news organizations and individuals would be required to respect “the public order and public morals,” but these broad terms are not defined to give guidance on their interpretation in practice.

    Provision 5 of article 33 would prohibit the broadcast of audio-visual material without prior permission from the ministry. Under provisions 9 and 10, TV stations would be required to keep a detailed record of all aired programs for 12 months, keep tapes of shows for three months and allow ministry officials access to the recordings.

    Provision 1 of articles 33 and 41 should be amended so that phrases such as “public order and public morals” are clearly and strictly defined according to international law. Provisions 5, 9, and 10 of article 33 should be amended to remove the requirement to obtain prior permission to broadcast audio-visual materials.

    The article should also be amended to permit ministry officials to visit the offices of newspapers and radio and TV channels to access tapes only when they can show that they have justifiable reasons and during ordinary business hours, and to provide appropriate advance notice to preclude the use of such visits to harass organizations.

 

  • Article 93would authorize the information minister to appoint officials with authority to “enter all stores and establishments subject to the provisions of the [press law] to examine documents and assets and seize any document.”

    The article should be amended to state that ministry officials could only visit to examine documents and assets of media establishments that receive public funds and in limited circumstances set out by law. The ministry officials should be required to have justifiable reasons for such visits and conduct them during ordinary business hours, providing adequate advance notice so that such visits are not used to harass media establishments. Examination of material or seizure of property should only be permitted with a court order.

 

Prohibitions

  • Article 66 wouldprohibit any media coverage that could “harm” election candidates or “others directly or indirectly.”

    This article should be deleted. Insulating public officials from criticism violates a fundamental principle of international human rights law that press freedoms should be wider, not narrower, with respect to speech relating to politicians and other public figures, who have chosen to pursue a career in the public eye.

 

  • Provisions 1,2,3,4 and 6 of article 82 would prohibit broadcasting commercials and publishing advertisements that include “slogans that glorify some countries against other countries; slogans that glorify some non-Kuwait politicians and religious figures; slogans that glorify some political and religious parties inside and outside Kuwait,” commercials and advertisements that could “compromise the national unity, Islamic values, and religious symbols,” and materials that have a “security nature.”

    These provisions areoverly broad and invite governmental abuse. Accepted international standards  – specified in article 19(3) of the ICCPR – only allow content-based restrictions in extremely narrow circumstances, such as speeches that threaten “national security” and “public safety” in situations that genuinely involve an immediate and violent threat to the nation.

    Restrictions in such circumstances must be clearly defined, specific, necessary, and proportionate to the interest protected. Article 82 should be amended to address these issues and to comply with article 19 of the ICCPR. While international law permits restricting paid political advertising on a non-discriminatory basis, to limit the amount of money parties and candidates need to spend on elections, this provision is not designed to address that issue. 

 

  • Article 84,“Prohibited Issues and Penalties,” includes 14 provisions of vaguely defined violations that would severely restrict the right to freedom of expression. Among prohibited issues would be compromising “God, Angels, Quran, prophets, and prophet Muhammad and wives and his companies, and ahl al-Bait (the Shia holy figures);” criticizing “the emir and the crown prince;” disrespecting or insulting Kuwait’s constitution or flag or the flags of the Gulf Cooperation Council states; disclosing news of treaties and conventions signed by the government before they are published by the official Gazette or without prior permission from the relevant ministry; and harming the relationship between Kuwait and other countries.

    The UNHRC has stated that, “All public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition” and, therefore, the need for “uninhibited expression” in public debate concerning public figures is very high. The committee has also stated that, “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant,” except in very limited circumstances.

    Relevant international standards only allow content-based restrictions in extremely narrow circumstances, such as cases of slander or libel against private individuals or speech that threatens national security. Restrictions must be clearly defined, specific, necessary, and proportionate to the interest protected. For instance, while the government may legitimately prohibit dissemination of military secrets, any restrictions that it may impose on freedom of expression to protect national security “are permissible only in serious cases of political or military threat to the entire nation,” Manfred Nowak, an internationally acknowledged expert, has stated in his commentary on the ICCPR.

    The article should be amended to address these issues.

 

  • Articles 85 and86prescribe fines ranging from 10,000 to 200,000 Kuwait dinars (US $35,000 to $700,000) for operating without a license for 10 categories of media outlets identified under article 4 (1-10) or operating without a license for several categories of websites identified under section (A) of article 86, including online news agencies and online newspapers.

    Articles 85and 86 should be amended so that there is no state licensing of media outlets, beyond the allocation of frequencies to broadcast media.

 

  • Article 87prescribes fines ranging from 100,000 to 200,000 Kuwait dinars (US $350,000 to $700,000) for violations of articles 25 and 35, which cover government auditing of media finances.

    Article 87should be amended to apply only to media receiving government funds and to assure that fines are proportionate, based on the severity of the violation, and levied only after providing a reasonable opportunity to correct the violationand to appeal the fine.

 

  • Under article 88, media workers including the “writer, author, editor, publisher, distributor, printer, editor-in-chief and his deputy, director of the TV station, producer, presenter and the source” would face up to 10 years in prison for violating provision 1 of article 84, which prohibits any publishing or broadcasting that could compromise “God, Angels, Quran, the prophets, and the prophet Muhammad and wives and his companies, and ahl al-Bait.”

    Under article 29 of the 1970 Penal Code, such media workers would also face up to 10 years in prison for violating the second provision of article 88, which prohibits “incitement to overthrow the regime;” or “encouraging changes in the region by force or by illegal means;” or “calling for the use of force to change the social system and the economic system of the country;” or “encouraging embracing a sect that aims to destroy the fundamentals of Kuwait’s system by illegal means.”

    The third provision sets a fine of 50,000 to 300,000 Kuwaiti dinars (US $175,000 to $1,000,000) for “offending the emir” while provision 4 sets a fine of 10,000 to 200,000 Kuwaiti dinars (US $35,000 to $700,000) for “offending the crown prince” and the rest of the categories identified under Article 84.

    The committee has stated that, “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the covenant,” except in strictly limited circumstances such as direct incitement to violence. The freedom to criticize existing policies or governments, to call for changes in policies and governments and to express support for unpopular political, religious, or social ideas is at the core of freedom of expression. This article should be amended to eliminate all criminal penalties for peaceful speech.

 

Suspension

  • Under article 89, upon the request of the Public Prosecution Office, the director of the Criminal Department or a “judge of urgent matters” would be able to suspend a newspaper, a channel, or a rebroadcast for up to two weeks subject to renewal pending investigation or trial, without giving any reason. The article would grant the Information Ministry authority to “block any content, or show or media material” for an indefinite period of time and for any reason.

    The UNHRC has stated that general bans on publications are never permissible, apart from the limited circumstances in which content may be restricted under article 19 of the ICCPR, and in which this content is not severable from the rest of the publication.

    Article 89 would allow individual violations to result in punishment of the entire media organization under investigation or on trial. The power granted to the authorities to renew suspension decisions will invite indefinite suspension of media organizations. The Information Ministry’s power to “block any content or show or media material” is problematic especially in the absence of any judicial process.  

    Article 89 should be amended to address these issues, to remove the power of these authorities to temporarily shut down media organizations, and to ensure that temporary closures occur only by judicial order and in response to serious violations of the law.

 

  • Under article 91, the Information Ministry would have the authority to suspend 10 categories of media operations including printing houses, SMS news services, and press distribution companies for up to 90 days if they “violate any provisions of [the press law] or executive regulations or any other decrees [related to the press law].” The article also states that the ministry may precede the suspension with a warning.

    The Information Ministry’s authority to suspend media operations, especially in the absence of any judicial process, is inconsistent with the standards of free media and would invite governmental abuse. This article should be amended to eliminate theministry’s authority to temporarily shut down the 10 media categories and ensure that temporary closures occur only by judicial order and in response to serious violations of the law.