Amend Measure to Meet International Standards
August 21, 2014
This new law comes at a time when Kuwait is prosecuting many activists, politicians, journalists, and other government critics on expansive interpretations of morality and national security.
Eric Goldstein, deputy Middle East and North Africa director

(Sanaa) – Kuwait’s new telecommunications law gives the government sweeping powers to block content, deny access to the Internet, and revoke licenses without giving reasons. The government should amend the law to limit the restrictions on telecommunication providers and users to no more than what international human rights law permits.

Communication law 37/2014, adopted on May 18, 2014, establishes a Commission for Mass Communications and Information Technology (CMCIT), as an independent body under the supervision of the communications minister with broad discretionary powers to grant or rescind licenses to companies that provide Internet cable, satellite, and land and wireless phone connections. The commission would begin its work by November 18. The law imposes harsh penalties on people who create or send “immoral” messages, and gives unspecified authorities the power to suspend communication services on national security grounds. Any communication service provider that “contributes” to the dissemination of messages that violate these vague standards can be punished. The law provides no opportunity for judicial review.

“This new law comes at a time when Kuwait is prosecuting many activists, politicians, journalists, and other government critics on expansive interpretations of morality and national security,” said Eric Goldstein, deputy Middle East and North Africa director. “It appears designed to give prosecuting authorities even wider legal authorization for violating Kuwaitis’ right to free speech.”

The International Covenant on Civil and Political Rights (ICCPR), which Kuwait has ratified, guarantees the right to freedom of expression. It allows governments to restrict expression to protect certain, specified interests, such as the “protection of national security or of public order, or of public health or morals,” but only when restrictions are absolutely necessary and strictly proportionate to the risk of harm to those interests. The new Kuwaiti law exceeds these limitations by allowing authorities to sanction speech if they deem it in any way harmful, without considering whether sanctions are actually necessary or no greater than needed, and by not allowing appeals.

The law allows the commission to grant or refuse licenses to service providers without disclosing the reasons or criteria for its decisions. It can revoke licenses if it decides that the licensee “caused serious harm to others,” although the law does not define “serious harm” or provide any guidance as to what this could entail. The law allows no appeal of a decision to refuse to issue a license or to summarily revoke one.

The law also authorizes the commission to require all service providers to take the necessary technical measures to prevent the transmission of content that could “harm public order and morals,” effectively as a condition of their license, raising the specter of heightened and continuous Internet self-censorship. The Communications Ministry currently blocks a range of websites it considers politically sensitive or morally offensive, often with the help of Internet service providers.

Kuwait was once viewed as the Gulf country most tolerant of free speech. But since a political crisis triggered mass protests and ultimately the resignation of the government in 2011, Kuwaiti officials have been invoking vaguely worded provisions in the penal code and in national security law to suppress free speech.

Prosecutors have repeatedly used the national security law and penal code provisions criminalizing “insult” to charge activists, journalists, bloggers, and others engaging in political or social commentary. A minimum three-year sentence is set out under article 15 of the national security law, for “intentionally broadcasting news, statements, or false or malicious rumors… that harm the national interests of the state.” The UN special rapporteur on the promotion and protection of freedom of opinion and expression, Frank La Rue, in June 2012, specifically criticized the use of “false news,” defamation, and reporting against “national interests” to chill the reporting of matters of public interest.

Articles 25 and 111 of the 1970 penal code prescribe prison sentences for anyone who publicly insults the emir or “mocks God, the prophets and messengers, or the honor of his messengers and their wives.” The authorities, since January 2011, have brought prosecutions under these and other articles against at least 60 people who expressed critical views on Twitter, Facebook, blogs, other social media platforms, and at protests. The UN Human Rights Committee, which oversees state implementation of the ICCPR, has commented that heads of government are legitimately subject to criticism and political opposition, and that insult laws, as well as morality restrictions that derive from a single religious tradition, are therefore problematic under the right to free expression.

As a state party to the ICCPR and the Arab Charter on Human Rights, Kuwait is required to protect the rights to freedom of opinion and expression. Article 36 of Kuwait’s constitution also guarantees freedom of opinion and expression.

The UN Human Rights Committee has also stated that “a law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.” Kuwait’s new telecommunications law violates this principle by authorizing the commission to: refuse or revoke licenses to service providers; direct licensees to block access to content or applications; or cut off individuals from telecommunication services without providing reasons, without administrative appeal, and without independent judicial review.

In his May 2011 report to the UN General Assembly, La Rue stated that he was “deeply concerned by increasingly sophisticated blocking or filtering mechanisms used by states for censorship. The lack of transparency surrounding these measures also makes it difficult to ascertain whether blocking or filtering is really necessary for the purported aims put forward by states.” 

La Rue said that governments that blocked websites should:

Provide lists of blocked websites and full details regarding the necessity and justification for blocking each individual website. An explanation should also be provided on the affected websites, as to why they have been blocked. Any determination on what content should be blocked must be undertaken by a competent judicial authority or a body which is independent of any political, commercial, or other unwarranted influences.

He has also said that measures to cut off access to the Internet or mobile service entirely, regardless of the justification provided, are “disproportionate and thus a violation of article 19 [of the ICCPR].” He said that all countries should ensure that network access is maintained at all times, including during times of political unrest.

“Kuwait’s reputation as perhaps the most rights-friendly of the Gulf states has taken a nosedive in recent months and this new telecoms law will only steepen the downward trajectory,” Goldstein said. “The parliament should step in and amend the law before the commission starts functioning, and the government should immediately stop prosecuting people for exercising free speech on social media or anywhere else.”

Key Concerns and Recommendations

Licensing

Article 9 empowers the Commission for Mass Communications and Information Technology (CMCIT) to turn down any prospective licensee or licensee seeking a license renewal “at its discretion.” Article 9 should be amended to require the commission to provide a detailed, written statement of reasons why a licensee is disqualified, and to provide an opportunity to challenge the decision in court. The law should also be amended to require implementing regulations that articulate objective and reasonable criteria for granting or denying a license, and to constrain the commission’s discretion. 

Article 35 allows the CMCIT to revoke licenses if the licensee “unlawfully caused serious harm to others” or unduly delays implementation of the commission’s instructions. While the ICCPR allows countries to restrict expression to protect the rights and reputation of others, permissible restrictions generally should be content specific. The UN Human Rights Committee makes it clear that the “generic ban” on the operation of certain sites and systems is not compatible with the ICCPR. In his May 2011 report to the UN General Assembly, La Rue, the UN special rapporteur, emphasized that “censorship measures should never be delegated to private entities, and that intermediaries should not be held liable for refusing to take action that infringes individuals’ human rights. Any requests submitted to intermediaries to prevent access to certain content ... should be done through an order issued by a court or a competent body which is independent of any political, commercial or other unwarranted influences.”

Article 35 should be amended to remove the CMCIT’s authority to revoke licenses if the licensee causes serious harm, a provision that is too vague to provide sufficient clarity or constrain the commission’s discretion. Under article 3, the commission already has the power to require any licensee to take measures to block specific content that harms public order or morals. Any order to block or filter content should be reviewed by an independent court. The commission should not have the authority to unilaterally revoke licenses without specific, objective criteria, and licensees should have the opportunity to appeal such decisions in court.  

Prohibitions
Articles 3 and 53 authorize the CMCIT to require a licensee to take all technical measures necessary to eliminate content it transmits that may “harm public order and morals,” and to withhold or discontinue communication services for individual consumers if they use communication services in a way that violates “public morals.” Article 53 also gives unspecified “competent authorities” the right to suspend service for reasons of “national security.” The law does not, however, define what may be considered harmful to public order, morals, or national security. In light of Kuwait’s past practice of overbroad prosecution, the lack of more specific guidance and of an appeal process is a serious flaw.

Article 19 of the ICCPR protects expressions that some may find to be deeply offensive, including comments that are deemed by some as insulting to public figures, including the highest political authorities. Similarly, speech may not be restricted merely because some find that it shows a lack of respect for a particular religion or other belief systems. While article 19 of the ICCPR allows for some restriction on speech that poses a direct and immediate threat to public order, public morals, or national security, the UN Human Rights Committee has made it clear that these restrictions “must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly.” Restrictions must be clearly defined, specific, necessary, and proportionate to the interest protected.

In his 2013 report to the UN Human Rights Council, La Rue stated, “use of an amorphous concept of national security to justify invasive limitations on the enjoyment of human rights is of serious concern.” He also stated in his 2011 report to the UN General Assembly that “cutting off users from Internet access, regardless of the justification provided [is] disproportionate and thus a violation of article 19.”

Articles 3 and 53 should be amended to address these issues, and to comply with article 19 of the ICCPR. Article 53 should be amended to ensure it does not authorize overbroad network shutdowns or unjustified suspension of service to an individual. 

Punishment
Under article 70, a person who “misuses” telephone communication may be imprisoned for a year and fined up to 2,000 Kuwaiti dinars (US$7,091). A person who uses any means of communication to threaten, insult, send immoral messages, “provoke panic,” or harm the reputation of others by taking photos or footages without their consent, or who fabricates immoral photos, can be imprisoned for two years and fined up to 5,000 Kuwaiti dinars (US$17,726). A person who sends such photos can be imprisoned for up to three years and fined 5,000 Kuwaiti dinars (US$17,726). If these photos are paired with threats or extortion, or used to “injure modesty, harm honor or instigate depravity,” the person can be imprisoned for five years and fined up to 10,000 Kuwaiti dinars (US$35,453). Any person who contributes to the provision of communication services that “violate public order or morals” can be imprisoned for up to two years, and fined 5,000 Kuwaiti dinars (US$17,726).

While the ICCPR recognizes the right to restrict free speech in protection of the rights and reputations of others, however, these restrictions “must be constructed with care,” ensure that they do not stifle freedom of expression in practice, and should not provide for “excessively punitive measures and penalties.” Furthermore, as stated explicitly by the UN Human Rights Committee, “imprisonment is never an appropriate penalty” for defamation.

In addition, in his 2011 report to the UN General Assembly, La Rue wrote that “holding intermediaries liable for the content disseminated or created by their users severely undermines the enjoyment of the right to freedom of opinion and expression, because it leads to self-protective and over-broad private censorship, often without transparency and the due process of the law.”

Article 70 should be amended to remove imprisonment as a punishment for any speech violations that amount to defamation as defined by law. It should ensure that fines are proportionate, based on the severity of the violation, and levied only after providing a reasonable opportunity to correct the infraction. Individuals should be able to appeal the fine. In addition, subsection (f), which allows for up to two years imprisonment for anyone who “contributes to the provision of communication services that violate public order or morals” should be removed.