TMT focus
Rana Hegazi Senior Associate, Corporate Commercial
Margaret McKenzie Associate, Corporate Commerical
Today, the Middle East and North Africa region (“MENA”) is ranked second in the world by an incredibly high number of daily YouTube video views. With an increasing number of individuals using internet services daily, it is without a doubt that internet consumption and online streaming continues to increase in popularity in MENA. Online content can be streamed through websites and applications in Kuwait, and includes various programs of different genres including drama series, variety shows, children’s programs, films, documentary, animations, and sports programs. Online games and activities can also be streamed. According to statistics released in 2021, there were 4.25 million social media users in Kuwait in January 2021 with the number of social media users in Kuwait exceeding 98.8% of the total population in January 2021. Despite accelerated use of the internet and specifically, online streaming services, there is currently no Kuwait legislation explicitly regulating such activities. Notwithstanding the lack of legislation specifically designated for the regulation of these activities, below we identify legal provisions that would be applicable or relevant to the subject matter.
If local authorities find that content available on an online streaming platform has violated any of the aforementioned restrictions, it could block the platform. We are aware of at least one instance of an individual filing a case in Kuwait court demanding that a platform be blocked in Kuwait because it featured immoral content that undermines traditional values."
The following authorities are the competent authorities with respect to the supervision, monitoring, and regulation of online streaming services available in Kuwait.
Ministry of Information - The Ministry of Information is primarily responsible for issuing licences and approvals for entities operating in the media sector in Kuwait, including media content production.
Communication & Information Technology Regulatory Authority (“CITRA”) - Established by Law No. 37 of 2014 and its executive regulations (Decree No. 933 of 2015), CITRA is Kuwait’s telecommunications regulator. It is responsible for overseeing the telecommunications sector, monitoring and protecting the interests of users and service providers, and regulating telecommunications networks and services (including internet content) in Kuwait. Based on CITRA’s broad powers, they can block any unethical, illegal, or abusive electronic content, and unblock any content that was wrongly deemed as prohibited.
Ministry of Interior - The Ministry of Interior (which has law enforcement and security functions) is responsible for executing sanctions (including blocking access to online platforms) in case of violation of the criminal and security laws and regulations for which it is responsible.
Generally, the laws relating to the regulation of the media sector in Kuwait are the following: (i) Law No. 61 of 2007 (the “Audio-Visual Media Law”); (ii) Law No. 3 of 2006 (the “Publication Law”) and (iii) Law No. 8 of 2016 (the “Electronic Media Law”).
It should be noted that the definitions of audio-visual media and electronic media under the relevant laws do not specifically make reference to online streaming platforms per se, although it has been argued that they are general enough to capture such activity.
The Audio-Visual Media Law and the Electronic Media Law introduce licensing requirements and content related considerations.
According to the Audio-Visual Media Law and the Electronic Media Law, anyone who wishes to undertake broadcasting or electronic media activities needs to obtain a licence from the Ministry of Media. Undertaking such activities without the necessary licence could result in penalties, including, under the Audio-Visual Media Law, imprisonment for a term not exceeding one year and/or a fine of not less than KD 5,000 (about USD 16,600), as well as seizure of associated equipment. Similar penalties are available under the Electronic Media Law in appropriate circumstances.
Significantly, we note that despite the apparent application to online streaming services – there is currently no clear expectation on the part of the local authorities for foreign streaming service operators with no on ground presence in Kuwait to comply with the licensing requirements contemplated in the Audio-Visual Media Law or the Electronic Media Law. Whether this approach will change in the future is unclear, but at the moment it would appear that there is no practical expectation for foreign online streaming services to establish a formal presence in Kuwait in order for their services to continue to be accessible to subscribers in Kuwait.
At a practical level, in the event that the relevant authorities receive a complaint about a relevant foreign streaming platform, they may block access to such platform so that it is unavailable to users in Kuwait.
Generally, published content should not be contrary to the morals and public policy of Kuwait. The Kuwait Constitution allows for promotion of freedom of expression whilst also ensuring unhindered access to information. It aims to eliminate any potential impediments to sharing in a way that would conserve national values and interests. Hence, the Audio-Visual Media Law and the Publication Law) prohibit and penalize any broadcast that impacts any local moral standards, ethics, politics and beliefs. This includes prohibiting any broadcast prejudicing or ridiculing God, the angels, the Holy Qur'an, the prophets, the good companions or the wives of the Prophet (PBUH), or inciting the overthrow of the country's system of government or urging a change of this regime by force or by unlawful means, or advocating the use of force to alter the country's existing social and economic order, or to embrace doctrines aimed at the unlawful destruction of the statutes in Kuwait, etc.
On a related note, as per the Executive Regulations of the Audio-Visual Media Law, media production companies licensed in Kuwait may not photograph, record, copy or transfer for exploitation, publish, broadcast or transmit in a public place, distribute, rent, trade, sell or offer for sale any audio or visual material without obtaining the Censorship on Artistic Works Department of the Ministry of Information’s prior approval. Said Censorship Department will evaluate the material and assess its compliance with the applicable laws, public morals and ethics.
In this respect, the Electronic Media Law holds the person responsible for a website or platform liable for false content and/or content in violation of content restrictions published on a website or platform. Although such considerations do not apply directly to a foreign online streaming platform, if local authorities find that content available on an online streaming platform has violated any of the aforementioned restrictions, it could block the platform. We are aware of at least one instance of an individual filing a case in Kuwait court demanding that a platform be blocked in Kuwait because it featured immoral content that undermines traditional values. A broader implication would be greater scrutiny from local authorities, with the possibility of changes (to legislation or practice) to ensure that there is a clear basis for capturing non-compliant content in such circumstances.
Finally, at this point to date, we are not aware of any decisions or announcements with respect to any potential laws or regulations that may come into effect to regulate such services in Kuwait leaving online streaming regulated implicitly by virtue of a number of separate texts of law. However, the content of such platforms is monitored by the competent authorities; hence companies that provide streaming services should abide by censorship and content restrictions discussed above. As online streaming activity becomes more prevalent and transforms with time, we expect to see more specific legislation and guidelines by Kuwait authorities.
For further information, please contact Philip Kotsis and Rana Hegazi.
Published in June 2022
