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Broadcasting (Amendment) Act (Act No. Iv Of 2010)

ACT No. IV of 2010

AN ACT to further amend the Broadcasting Act, Cap. 350

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:

1. (1) The short title of this Act is the Broadcasting (Amendment) Act, 2010 and it shall be read and construed as one with the Broadcasting Act, hereinafter referred to as “the principal Act”.

Short title and commencement.

(2) This Act shall come into force on such a date as the Minister responsible for culture may by notice in the Gazette establish, and different dates may be so established for different provisions.

2. Article 2 of the principal Act shall be amended as follows:

(a) for the definition “broadcast” there shall be substituted the following:
““broadcast” means the initial transmission of radio or television programmes or of any audiovisual material intended for reception by the public on any electronic communications network and any electronic communications service as defined in article 2 of the Electronic Communications (Regulation) Act, but does

Amends article 2

of the principal Act.

Cap. 399.

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not include retransmissions and communication services providing items of information or other messages on individual demand such as telecopying, electronic data banks and other similar services;”; and
(b) the definitions “sponsorship” and “surreptitious advertising” shall be deleted.

Substitutes the title of Part III of the principal Act.

Deletes

article 12A

of the principal Act.

Adds

new Parts III B

and III C to

the principal Act.

Interpretation.

3. For the title to Part III of the Broadcasting Act, there shall be substituted the following:

“Radio and Television Broadcasting Licences”.

4. Article 12A of the principal Act shall be deleted.

5. Immediately after article 16F of the principal Act, there shall be added the following new Parts:

“PART III B

Provisions Applicable to Radio and

to All Audiovisual Media Service Providers

16G. In this Part, unless the context otherwise requires: “audiovisual commercial communication” means images
with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal entity pursuing an economic activity. Such images accompany or are included in a programme in return for payment or for similar consideration or for self-promotional purposes. Forms of audiovisual commercial communication include, inter alia, television advertising, sponsorship, teleshopping and product placement;
“audiovisual media service” means:
(a) a service as defined by articles 49 and 50 of the Treaty which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes in order to inform, entertain or educate to the general public by electronic communications networks within the meaning of article
2 of the Electronic Communications (Regulation) Act.

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Such an audiovisual media service is either a television broadcast or an on-demand audiovisual media service; or
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(b) an audiovisual commercial communication;
or
(c) both (a) and (b) above;
“broadcaster” means a media service provider of either radio or television broadcasts, or of both;
“broadcasting”, in so far as television broadcasting is concerned, namely a linear audiovisual media service, means an audiovisual media service provided by a media service provider for simultaneous viewing of programmes on the basis of a programme schedule;
“Directive” means Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities published in the Official Journal of the European Union on 18 December 2007 (L
332/27);
“editorial responsibility” means the exercise of effective control both over the selection of the programmes and over their organisation either in a chronological schedule, in the case of television broadcasts, or in a catalogue, in the case of on-demand audiovisual media services. Editorial responsibility does not necessarily imply any legal liability under national law for the content or the services provided;
“European Union” shall have the same meaning assigned to it by article 2 of the European Union Act;
“media service provider” means the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised;
“Member State” means a Member State of the European
Union;

Cap. 460.

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“on-demand audiovisual media service” means a nonlinear audiovisual media service provided by a media service provider for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider;
“product placement” means any form of audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within a programme, in return for payment or for similar consideration;
“programme” means a set of moving images, with or without sound, constituting an individual item within a schedule or a catalogue established by a media service provider and whose form and content is comparable to the form and content of television broadcast. Examples of programmes include feature-length films, sports events, situation comedies, documentaries, children’s programmes and original drama;
“sponsorship” means any contribution made by a public or private undertaking or natural person not engaged in providing audiovisual media services or in the production of audiovisual works, to the financing of audiovisual media services or programmes with a view to promoting its name, its trade mark, its image, its activities or its products;
“surreptitious audiovisual commercial communication” means the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services in programmes when such representation is intended by the media service provider to serve as advertising and might mislead the public as to its nature. Such representation shall, in particular, be considered as intentional if it is done in return for payment or for similar consideration;
“the Treaty” shall have the same meaning assigned to it by article 2 of the European Union Act.

Obligations of the Authority concerning audiovisual media services.

16H. (1) The Authority shall ensure that all audiovisual media services transmitted by media service providers falling under the jurisdiction of Malta shall comply with the provisions of this

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Act and of any subsidiary legislation made thereunder applicable to audiovisual media services intended for the public in Malta.
(2) For the purposes of this Act, the media service providers under the jurisdiction of Malta shall be those providers:
(a) who are established in Malta in accordance with sub-article (3); or
(b) to whom sub-article (4) applies.
(3) For the purposes of this Act, a media service provider shall be deemed to be established in Malta:
(a) if the media service provider has its head office in Malta and the editorial decisions about the audiovisual media service are taken in Malta;
(b) if a media service provider has its head office in one Member State but editorial decisions on the audiovisual media service are taken in another Member State it shall be deemed to be established in the Member State where a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates. If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in each of those Member States, the media service provider shall be deemed to be established in the Member State where it has its head office. If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in neither of those Member States, the media service provider shall be deemed to be established in the Member State where it first began its activity in accordance with the law of that Member State, provided that it maintains a stable and effective link with the economy of that Member State;
(c) if a media service provider has its head office in a Member State but decisions on the audiovisual media service are taken in a third country, or vice-versa, it shall be deemed to be established in the Member State concerned, provided that a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in that Member State.
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(4) Media service providers to whom the provisions of sub-article (3) are not applicable shall be deemed to be under the jurisdiction of a Member State in the following cases:
(a) if they use a satellite up-link situated in that
Member State;
(b) although they do not use a satellite up-link situated in that Member State, if they use satellite capacity appertaining to that Member State.
(5) If the question as to which Member State has jurisdiction cannot be determined in accordance with sub-articles (3) and (4), the competent Member State shall be that in which the media service provider is established within the meaning of articles
49 to 54 of the Treaty.
(6) The provisions of articles 16G to 16P shall not apply to audiovisual media services intended exclusively for reception in third countries and which are not received with standard consumer equipment directly or indirectly by the public in one or more Member States.

Freedom of reception and retransmission.

law:
16I. (1) Except as provided in this Act and in any other
(a) freedom of reception is guaranteed; and
(b) freedom of retransmission in Malta of audiovisual media services from other Member States for reasons which fall within the fields coordinated by the Directive is guaranteed.
(2) The Minister may make regulations to derogate from the provisions of sub-article (1) of this article which are consistent with the provisions of the Directive provided that the conditions mentioned in article 2a of the Directive are fulfilled.

Information to be provided by media service providers.

16J. (1) Audiovisual media service providers shall make easily, directly and permanently accessible to the recipients of a service at least the following information:
(a) the name of the media service provider;
(b) the geographical address at which the media service provider is established;

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(c) the details of the media service provider, including his electronic mail address or website, which allow him to be contacted rapidly in a direct and effective manner;
(d) where applicable, the competent regulatory or supervisory bodies.
(2) Audiovisual media services provided by media service providers shall not contain any incitement to hatred based on race, sex, religion or nationality.
(3) Media service providers shall encourage that their services are gradually made accessible to people with a visual or hearing disability.
(4) Media service providers shall not transmit cinematographic works outside periods agreed with the rights holders.
16K. Audiovisual commercial communications provided by media service providers shall comply with the following requirements:
(a) audiovisual commercial communications shall be readily recognisable as such. Surreptitious audiovisual commercial communication shall be prohibited;
(b) audiovisual commercial communications shall not use subliminal techniques;
(c) audiovisual commercial communications shall not: (i) prejudice respect for human dignity;
(ii) include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
(iii) encourage behaviour prejudicial to health or safety;
(iv) encourage behaviour grossly prejudicial to the protection of the environment;
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Provisions applicable to audiovisual commercial communications.

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(d) all forms of audiovisual commercial communications for cigarettes and other tobacco products shall be prohibited;
(e) audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages;
(f) audiovisual commercial communication for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited;
(g) audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.

Provisions applicable to audiovisual media services or programmes.

16L. (1) Audiovisual media services or programmes that are sponsored shall meet the following requirements:
(a) their content and, in the case of television broadcasting, their scheduling shall in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider;
(b) they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services;
(c) viewers shall be clearly informed of the existence of a sponsorship agreement. Sponsored programmes shall be clearly identified as such by the name, logo and, or any other symbol of the sponsor such as a reference to any of its products or services or a distinctive sign thereof in an appropriate way for programmes at the beginning, during and, or the end of the programmes.

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(2) Audiovisual media services or programmes shall not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products.
(3) The sponsorship of audiovisual media services or programmes by undertakings whose activities include the manufacture or sale of medicinal products and medical treatment may promote the name or the image of the undertaking, but shall not promote specific medicinal products or medical treatments available only on prescription in the Member State within whose jurisdiction the media service provider falls.
(4) News and current affairs programmes shall not be sponsored.
(5) The showing of a sponsorship logo during children’s programmes, documentaries and religious programmes shall be prohibited.
16M. (1) Subject to the provisions of this article, product placement shall be prohibited.
(2) By way of derogation from sub-article (1), product placement shall be admissible only in the following instances:
(a) in cinematographic works, films and series made for audiovisual media services, sports programmes and light entertainment programmes; or
(b) where there is no payment but only the provision of certain goods or services free of charge, such as production props and prizes, with a view to their inclusion in a programme:
Provided that the derogation provided for in this sub- article shall not apply to children’s programmes.
(3) Programmes that contain product placement shall meet at least all of the following requirements:
(a) their content and, in the case of television broadcasting, their scheduling shall in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider;
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Regulation of product placement.

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(b) they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services;
(c) they shall not give undue prominence to the product in question;
(d) viewers shall be clearly informed of the existence of product placement. Programmes containing product placement shall be appropriately identified at the start and the end of the programme, and when a programme resumes after an advertising break, in order to avoid any confusion on the part of the viewer:
Provided that by way of exception, the Authority may choose to waive the requirements set out in this paragraph provided that the programme in question has neither been produced nor commissioned by the media service provider itself or a company affiliated to the media service provider.
(4) In any event programmes shall not contain product placement of:
(a) tobacco products or cigarettes or product placement from undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products; or
(b) specific medicinal products or medical treatments available only on prescription in the Member State within whose jurisdiction the media service provider falls.
(5) The provisions of sub-articles (1), (2) and (3) shall apply only to programmes produced after the 19th December 2009.

PART IIIC

Provisions Applicable Only to On-Demand Audiovisual

Media Services

Provisions applicable only to on-demand audiovisual media services.

16N. (1) On-demand audiovisual media services provided by media service providers which might seriously impair the physical, mental or moral development of minors shall only made available in such a way that ensures that minors will not normally hear or see such on-demand audiovisual media services.

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(2) On-demand audiovisual media services provided by media service providers shall promote, where practicable and by appropriate means, the production of and access to European works. Such promotion could relate, inter alia, to the financial contribution made by such services to the production and rights acquisition of European works or to the share and, or prominence of European works in the catalogue of programmes offered by the on-demand audiovisual media service.
16O. (1) Subject to subarticle (4), any person who intends to provide an on-demand audiovisual media service shall, before doing so, notify the Authority of his intention to provide such a service.
(2) A notification under subarticle (1) shall be in such form as the Authority may from time to time determine and shall contain the information that is required to enable the Authority to maintain a list of providers of on-demand audiovisual media services.
(3) Upon receipt by the Authority of a notification in accordance with subarticle (1), the person concerned shall be deemed to be authorised to provide an on-demand audiovisual media service, subject to such conditions as may be imposed in accordance with this Part of this Act.
(4) The Authority may determine that any person providing an on-demand audiovisual media service of a particular class or description specified in such a decision shall not be subject to the requirements of subarticle (1).
(5) The Authority may, by order in the Gazette, amend the conditions mentioned in subarticle (3). Any such amendments may only be made in objectively justified cases and in a proportionate manner. The Authority, before making any such amendment to the said conditions, shall give notice in such manner as it considers appropriate of its intention, inviting interested parties to make representations on the proposed amendments within such period of not less than thirty days as may be specified in the notice. The Authority may, in circumstances which it considers to be exceptional, shorten such period.
16P. Compliance with any authorisation granted in terms of article 16O enabling a person to provide an on-demand audiovisual media service shall not relieve such a person from any requirement
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Notification of on-demand audiovisual media services.

Requirement to obtain other authorisations, etc., required at law.

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at law to apply for any other authorisation, licence or permit however so described, or from any obligation arising from this or any other law.”.

Amends

article 19

of the principal Act.

6. Subarticle (7) of article 19 of the principal Act shall be deleted.

Passed by the House of Representatives at Sitting No. 229 of 31st May, 2010.
MichAel Frendo

Speaker

PAuline AbelA

Clerk to the House of Representatives