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Kuwait should abandon repressive draft media law

Supporters of Kuwaiti opposition politician Musallam al-Barrak pray in the yard of his house in Andulos, after he was sentenced to jail for insulting the emir, April 15. (Reuters/Stephanie McGehee)

On April 8, the Kuwaiti cabinet approved a draft media law that would severely undermine press freedom in the country. But it is not too late to prevent a bad bill from becoming a bad law.

The 99 articles of the draft "Unified Media Law"-- published in its entirety by Kuwaiti daily Al-Qabas on April 9--regulate everything from newspapers and television to concerts, movie theaters, and social media. There's even a clause about advertising books on magic. The bill must be ratified by the National Assembly and signed by Emir Sheikh Sabah al-Ahmad al-Jaber al-Sabah before it becomes law.

While there is much to be concerned about, three aspects of the draft law deserve special scrutiny: inflated penalties on media outlets, unjustified restrictions on election coverage, and ambiguous regulations for online media.

Inflated Penalties

The draft media law would severely increase financial penalties for crimes currently outlawed by the 2006 Press and Publication Law and the 2007 Visual and Audible Media Law, English translations of which were provided to me by the Ministry of Information. The draft prescribes fines up to 300,000 dinar (approximately US$1 million), a massive jump from the current laws' largest fine of 20,000 dinar.

Article 88 of the draft media law seeks to unify fines for crimes that currently vary depending on the type of media. Insulting the emir would result in a fine between 50,000 and 300,000 dinar. The same fine would apply for insulting the Crown Prince, an offense not prohibited by the current media laws.

Insulting the constitution, the flag, or the flag of any Gulf country; harming public morals; inciting crimes; harming Kuwaiti relations with other governments; and slandering the private life of public servants could all result in fines up to 100,000 dinar. Insulting the judiciary, undermining confidence in the national economy and currency, spreading hatred, and damaging national unity would result in fines up to 200,000 dinar.

Article 88 also provides for up to 10 years imprisonment for insulting, ridiculing, criticizing, or defaming God, the angels, the Quran, the Prophet Muhammad, and other important figures in Islam. The previous punishment was up to one year imprisonment and/or a fine between 5,000 and 20,000 dinar.

The Ministry of Information told me that one of the main purposes of revising the law is to replace prison penalties with financial penalties for "secular violations." But the fines are so steep that journalists could be sent to jail anyway for their inability to pay, with the Arabic Network for Human Rights Information worrying the "massive fees will open widely the prison doors." Moreover, the draft law specifically states these fines do not preclude harsher penalties under other laws--which could potentially include imprisonment.

Plus, the exorbitant fines could be used maliciously to bankrupt critical media outlets. According to Article 6, a media outlet must raise capital between 100,000 and 1 million dinar to apply for a license, depending on the kind of outlet. That means a maximum fee could seriously disrupt a media company that barely meets the minimum capital requirement, especially if the outlet faces multiple charges.

Most importantly, a debate over the severity of these penalties omits an important fact: most of these "crimes" shouldn't be crimes at all. CPJ research shows that ambiguous terms like "public morals" and "damaging national unity" at best lead to the arbitrary implementation of the law and, at worst, allow the government to selectively target dissident voices. A free press must be allowed to criticize public officials, scrutinize the economy, question the outcomes of trials, and espouse unpopular views in society.

Restrictions on covering elections

The draft media law also places significant restrictions on the coverage of elections, undermining the essential role the press should play in helping voters make informed decisions.

Most importantly, Article 66 bans media outlets from covering any news story that could potentially harm a candidate, either directly or indirectly, and Article 67 prohibits publishing advertisements or news stories that urge voters to support a particular candidate or to abstain from voting.

Banned from reporting stories that could harm a candidate, the Kuwaiti press would not be able to investigate the quality of candidates or report on alleged corruption or past voting records without fear of prosecution.

The ban on urging citizens to abstain from voting takes on a special importance in Kuwait, where many question the legitimacy of the electoral process. Last week, thousands of Kuwaitis protested in the streets after an opposition leader was sentenced to five years imprisonment for criticizing the emir's plan to overhaul the voting system, Reuters reported.

Georgia State University professor Matt Duffy, an Arab media law researcher, told me the draft law is "an incredible abridgement of freedom of the press and shows a lack of understanding about the benefits a robust free press provides to society."

Regulation of Online Media

The draft media law would also impose new regulations on online media outlets and social media. If passed, the bill would require online newspapers and other websites to apply for a license like traditional media.

Contrary to some speculation in local media, users of social media websites like Twitter and Facebook would not be required to apply for licenses. Article 52, which requires other websites to apply for licenses, explicitly excludes social media sites.

Still, there are significant problems with articles concerning online media. Article 61 gives the Ministry of Information the authority to shut down news websites, excluding social media, if they violate the bill's provisions. But it is not clear how the Kuwaiti government plans to enforce that provision for websites hosted in other countries, especially given the wide accessibility of technical workarounds to online censorship.

More troublingly, Article 60 holds website managers responsible for any content on their sites. This article implies that an online news outlet could be fined for a comment a user posts to a story if, for example, the comment were deemed insulting to the emir. The article also does not explicitly exclude social media, potentially exposing the average Web user to fines or even imprisonment for what someone else posts to their Facebook profile. 

Kuwait is already leading the charge in the Arab world in targeting social media users, with numerous politiciansactivistsbloggers, and citizens prosecuted for insulting the emir on social media. The ambiguous provisions in this bill would provide the government with yet another legal weapon to tamp down online dissent.

The provisions seem to indicate that the drafters don't truly grasp how the Internet works. As a critical editorial in the Kuwaiti daily Al-Rai remarked, "it is as if Kuwait still lives in the pre-Internet era."

We Expect Better from Kuwait

There are a few positives in the bill. The Ministry of Information told me that the draft law consolidates a confusing web of laws and regulations, ensures greater financial transparency through audits, and would allow for the first time foreign investment in media activities. Moreover, there is a legitimate need to regulate some aspects of Internet usage and to address the very real dangers of sectarian speech.

But this bill clearly fails its primary purpose of upholding Articles 36 and 37of the Kuwaiti constitution, which guarantees freedom of expression and the press. The government should therefore scrap this draft law and start over.

Unfortunately, the precedent set by Kuwait's neighbors suggests the government will still try to push the draft through parliament. Since the start of uprisings across the Middle East and North Africa in 2011, several countries have revised their laws governing the media, the Internet and political expression, including the UAE, Bahrain, Jordan, Saudi Arabia, and Oman. But there are some exceptions, with Iraq scrapping its Information Crimes bill earlier this year.

Kuwait's parliament is one of the most robust and in the Gulf, and it may be able to extract some marginal improvements to the bill. But, in the words of the Al-Rai editorial, the bill's flaws "are enough to blow up the law from its roots and not just amend it."

It should not be surprising that Al-Rai and many other outlets in the Kuwaiti media--among the most free in the region--have not hesitated to forcefully condemn this bill. The reaction has been so strong that the Minister of Information has had to deny rumors that the bill has been withdrawn. The vehement response from Kuwait's media illustrates why the draft media law is all the more shocking: Quite simply, we expect better from Kuwait. 

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