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AN ACT to amend the Broadcasting Act to extend further pluralism in broadcasting and to permit the licensing of a general interest objective network operator and general interest broadcasting content licensees.
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:-
Short title and commencement.
Cap. 350.
Amendment of article
10 of the principal
Act.
(a) in subarticle (2) thereof, immediately after the words “of the Authority”, there shall be added the words
“, nor may any person retransmit sound or television broadcasting services from Malta to any foreign state without the licence
in writing of the Authority”;
(b) for subarticle (4) thereof, there shall be substituted the following:-
“(4) Licences may be of particular classes or description and shall in particular include licenses for:
(a) nationwide television services; (b) nationwide radio services;
(c) community radio services; (d) satellite radio services;
(e) satellite television services;
(f) such other services which may be broadcast or provided on or by an electronic communications network as defined in article 2
of the Electronic Communications (Regulation) Act as the Authority may by regulations prescribe.”;
(c) immediately after subarticle (4) thereof, there shall be inserted the following new subarticles:-
“(4A) In so far as nationwide television services are concerned, the Authority may issue the following categories of television
broadcasting licences:
(a) a general interest broadcast content licence issued to any broadcaster other than the company referred to in subarticle
(4C);
(b) a commercial broadcast content licence issued to any broadcaster.
(4B) The Authority may make regulations to give better effect to the provisions of subarticles (4) and (4A) and may, without
prejudice to the generality of the foregoing, make regulations in respect of the application process for all services and applications
for licences, including establishing the applicable application and licence fees therefor and to establish evaluation criteria therefor.
(4C) Stations owned or controlled by the Government company referred to in subarticle (4D) or for which the said company is editorially
responsible
A 549
A 550 VERŻJONI ELETTRONIKA
shall be licensed by the Minister. For the purposes of enabling the Authority to carry out its regulatory duties in terms of law,
the Minister shall, as soon as possible from the date of issue of any licence to the aforesaid Government company, notify in writing
to the Authority a copy of such licence. The provisions of article 119 of the Constitution of Malta, this Act and all subsidiary
legislation made thereunder shall continue to apply to such licensee.
(4D) The Government may, through a company designated by the Minister by an order in the Gazette, as a company providing public
broadcasting services, own, control or be editorially responsible for nationwide television and radio services mentioned in subarticle
(4C):
Provided that the Government may not own any broadcasting services or participate in their ownership, control or be editorially responsible
for any such services other than through such company, and that no other company in which the Government has a controlling interest
may own voting shares in a company providing any broadcasting services.
(4E) The following terms are defined as follows: “general interest objective service” means a
television broadcasting service which takes on the
obligation of broadcasting a specified quantum of programmes which are of general interest and which are considered by the National
Broadcasting Policy as in force from time to time to be part of the remit of a public service broadcasting service. A general interest
objective service may be either a generalist service or a niche service;
“niche | service” | means | a television |
broadcasting | service | which | predominantly |
transmits programmes of a limited number of
genres of a specialist subject matter;
“generalist service” means a television broadcasting service which transmits a wide range of programme genre; and
“commercial television broadcasting service” means a television broadcasting service that is either a generalist service
or a niche service and that is not subject to the obligations of a general interest objective service.”;
(d) for subarticle (5) thereof, there shall be substituted the following:
“(5) A licence for any broadcasting service may only be awarded to a company regularly incorporated in Malta in accordance with
the Companies Act, provided that licences for community radio services may also be awarded to individuals who are ordinarily resident
in Malta.”;
(e) for subarticle (6) thereof , there shall be substituted the following:-
“(6) Subject to the provisions of subarticle (2) hereof and without prejudice to the provisions of subarticle (4D)
hereof, the same organisation, person or company may concurrently own, control or be editorially responsible for more than one nationwide
radio service and one nationwide television service, provided that:
(a) only one nationwide radio service may be licensed on the FM frequency to the same organization, person or company;
(b) not more than two generalist nationwide television services may be licensed to the same organization, person or company;
(c) the same organisation, person or company may not own, control or be editorially responsible for more than one nationwide
radio or television service predominantly transmitting news and current affairs.”; and
(f) immediately after subarticle (6) thereof, there shall be added the following subarticles:
“(6A) The same organisation, person or company may not own, control or be editorially responsible
Cap. 386.
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A 552 VERŻJONI ELETTRONIKA
for more than one community radio service and any organisation which owns, controls or is editorially responsible for a nationwide
radio service or a nationwide television service or such other service as mentioned in paragraph (d) of subarticle (4) may
not own, control or be editorially responsible for a community radio service.
(6B) Where an electronic communications network operator does not broadcast any programme content on a particular station for such
period of time as the Authority shall determine, then, notwithstanding the provisions of this Act, no amount of transmission time
may be devoted to teleshopping spots, advertising spots and other forms of advertising on that station. It shall be the duty of the
said network operator to provide the Authority with programme schedules at reasonable intervals that the Authority may determine
to enable it beforehand to exercise its powers under this subarticle.
(6C) In no case, whether on a community and a nationwide radio broadcasting service or a television broadcasting service shall
it be allowed to broadcast an interactive gaming content or interactive gambling content and this according to criteria to be
established by the Broadcasting Authority from time to time.
Cap. 363.
Amendment of article
11 of the principal
Act.
(6D) Local councils established under the Local Councils Act may not, in terms of article 77 of the Local Councils Act, own, control
or be editorially responsible for any broadcasting service, including any community radio service.
(6E) For the purpose of this article the simultaneous transmission of the same broadcasting service on different media shall
be considered as one broadcasting service.”.
(a) for paragraph (c) thereof, there shall be substituted the following:
“(c) that private broadcasting services shall
be allowed to operate in such a way so as to ensure a distribution of programming that appeals to general as well as specific and
various interests. The Minister shall prepare and publish Government’s broadcasting policy and update it from time to time;”;
and
(b) for paragraph (e) thereof, there shall be substituted the following:-
“(e) that in granting licences to different persons, it shall also take into account the possibility of broadcasting by satellite,
cable, digital terrestrial television, digital radio or through such other electronic communications networks as may be possible
from time to time.”.
(a) in subarticle (2) thereof, for the words from “It shall be the duty of the Authority to satisfy itself that,” to the words
“the following requirements, that is to say-” there shall be substituted the words “In so far as general interest broadcasting
services are concerned and where the Authority allows news and current affairs programmes to be broadcast by such services, it shall
be the duty of the Authority to satisfy itself that, so far as possible, the programmes broadcast by any general interest broadcasting
service complies with all or any of the following requirements as the Authority may impose in the broadcasting licence, that is to
say –”; and
(b) immediately after the proviso thereto, there shall be added the following new proviso:
“Provided further that the Authority may, when granting a broadcasting licence for a commercial station, impose any of the
requirements mentioned in paragraphs (a) to (f) of this subarticle in the said licence.”.
(a) for the proviso to subarticle (1) thereof, there shall be substituted the following:
A 553
Amendment of article
13 of the principal
Act.
Amendment of article
16 of the principal
Act.
A 554 VERŻJONI ELETTRONIKA
“Provided that the provisions of this subarticle shall not apply to a general interest broadcast content licence and it shall not
be permissible for the Authority to authorise any of the measures mentioned in paragraphs (i) to (vi) of this subarticle.”; and
(b) subarticle (3) thereof shall be amended as follows:
(i) the words “(including provisions for the purposes set out in the First Schedule to this Act)” shall be deleted; and
(ii) immediately after the words “the provisions of this Act.” there shall be added the words “The First Schedule to this
Act shall apply to such licence and contract aforesaid.”.
Deletion of article
16A of the principal
Act.
Amendment of article
16M of the principal
Act.
Amendment of article
17 of the principal
Act.
Amendment of article
18 of the principal
Act.
(a) in paragraph (b) thereof, for the words “provider falls.” there shall be substituted the words “provider falls; or”;
and
(b) immediately after paragraph (b) thereof, there shall be added the following new paragraph:
“(c) alcoholic drinks of more than 1.2% alcohol during programming which is broadcast between
6.00 a.m. and 9.00 p.m.; gambling products during programming which is broadcast between 6.00 a.m. and
7.00 p.m.; infant formula; and weapons and munitions.”.
“Minister” there shall be substituted the following:
“ “the Minister” means the Minister responsible for communications; and”.
“(6) Notwithstanding the provisions of subarticles (1) to (5) hereof, the following provisions shall apply to nationwide
television services:-
(a) in the case of an applicant for a nationwide commercial broadcast television service, he shall inform the Authority on which
electronic communications network the service will be carried. In doing so, the said applicant shall inform the Authority of the
details of the network operator and the specific frequency on which the said service shall be transmitted;
(b) in the case of the public service broadcaster and of general interest objective television broadcasting services, transmission
capacity shall, subject to such conditions as may be applicable to the use of such transmission capacity, be allotted by the Authority
on the general interest objective network referred to in article
40(1) hereof.”.
“(4) For the purposes of this article, the term “teletext transmissions” shall include electronic programme guides and radio data systems.”.
A 555
Amendment of article
21 of the principal
Act.
Amendment of article
23 of the principal
Act.
Substitution of article
35 of the principal
Act.
“Power to make regulations.
35. (1) The Prime Minister, in conjunction with the Authority, may make regulations to give better effect to the provisions of
this Act.
(2) Such regulations may repeal the provisions of the Fourth Schedule to this Act:
Provided that until such regulations are made in terms of subarticle (1), the Fourth Schedule to this Act shall continue to apply.”.
A 556 VERŻJONI ELETTRONIKA
Substitution of article
40 of the principal
Act.
“General interest objective network operator and general interest broadcasting content licensees.
40. (1) The Authority shall appoint and license a network operator (hereinafter referred to as “the network operator”) to
run the general interest objective network licensed by the Malta Communications Authority in terms of the Electronic Communications
(Regulation) Act.
(2) The Authority shall decide, following a call for applications, which licensees of general content objective services approved
by it shall be carried by the network operator. The first call for applications to be issued by the Authority shall
be open to those broadcasting services existing on the 1st December 2010 as free-to-air analogue broadcasters. Following the first
call for applications, the Authority may issue a second or subsequent call to assign available channels on the general interest objective
network:
Provided that any public service television service which was broadcasting on the 1st December
2010 shall be automatically considered to qualify for the purposes of this provision as a general interest broadcasting
service without the need of applying as aforesaid.
(3) When making regulations to establish criteria for evaluating an application for a general interest nationwide television
broadcasting service, the Prime Minister, after consultation with the Authority, shall consider the following criteria:
(a) general criteria concerning quality programming across the full range of public tastes and interests;
(b) programming of an educational and cultural nature;
(c) news and current affairs programming;
(d) a comprehensive and accurate
information service in the interests of a democratic and pluralistic society.
(4) The Authority shall determine the channel line up on the general interest objective network from amongst the general
interest broadcasting content licensees and the network operator shall comply with such determination. The Authority’s decision
shall be final.
(5) Notwithstanding the provisions of any other law, general interest objective service licensees broadcasting on the general interest
objective network shall offer free of charge their broadcasting content to such electronic communications networks as the
Authority may from time to time direct or approve.
(6) The Authority may make regulations to give better effect to the provisions of this article and may, without prejudice to
the generality of the foregoing, make regulations in respect of the determination of disputes between the network operator and the
general interest objective service, the regulation of the general interest objective network in order to ensure that the network
operator abides by the provisions of this article and any regulations made thereunder and, generally to ensure that an uninterrupted
service is provided by the network operator:
Provided that in the case of a dispute between the network operator and a general interest objective service licensee, such disputes
shall be referred to a standing arbitral tribunal to be composed of one person appointed by the Broadcasting Authority
who shall preside, one person appointed by the Malta Communications Authority and one person appointed in agreement between
the Broadcasting Authority and the Malta Communications Authority. The said tribunal shall decide the complaint as expeditiously
as possible and its decision shall be final.”.
(7) The Authority shall approve the conditions and fees imposed on the contract entered into between the network operator and
the general interest objective service.
A 557
A 558 VERŻJONI ELETTRONIKA
Substitution of the First Schedule to the principal Act.
PURPOSES FOR WHICH PROVISION IS TO BE MADE IN LICENCES AND CONTRACTS FOR THE PROVISION OF BROADCASTING SERVICES
1. A licence shall include –
(a) such conditions as appear to the Authority to be appropriate having regard to any duties which are or may be imposed on the
Authority itself, or on the licensee, by or under this Act;
(b) conditions enabling the supervision and enforcement of technical standards in connection with the provision of the licensed
service (including the use of the allocated frequency);
(c) conditions requiring the payment by the licensee (whether on the grant of the licence or at such times thereafter as may be
determined by or under the licence, or both) of a fee or fees of an amount or amounts so determined;
(d) conditions requiring the licensee to furnish the Authority, in such manner and at such times as it may reasonably require, with
such information (including documents, returns, accounts and declarations) as it may require for the purpose of exercising the functions
assigned to it by or under this Act;
(e) conditions requiring the licensee, if found by the Authority to be in breach of any condition of his licence, to reimburse
to the Authority, in such circumstances as are specified in any conditions, any costs reasonably incurred by it in connection with
the breach of that condition;
(f) conditions providing for such incidental and supplemental matters as appear to the Authority to be appropriate; and
(g) conditions requiring licensees, other than those
providing community radio services, within each financial year, to present to the Authority copies of their audited accounts for the
previous financial year, a declaration as of the 31st December of each year as to the licensees’ affairs/ corporate structures
as well as reports on the state of public opinion concerning their programme services.
2. A licence shall also include –
(a) conditions requiring the licensee –
(i) to comply with any direction given by the Authority as to such matters as are specified in the licence or are of a description
so specified;
(ii) (except to the extent that the Authority consent to his doing or not doing them) not to do or to do such things as are
specified in the licence or are of a description so specified;
(iii) to comply with the programme service (“promise of performance”) as approved by the Authority;
(b) conditions requiring the licensee to permit –
(i) any employee of, or person authorised by, the
Authority, or
(ii) any officer of, or person authorised by, the
Malta Communications Authority,
to enter any premises which are used in connection with the broadcasting of the licensed service and to inspect, examine, operate
or test any equipment on the premises which is used in that connection; and
(c) conditions requiring the licensee –
(i) to retain, for a period of 90 days, a recording of every programme included in the licensed service;
(ii) at the request of the Authority or of a court of law, to produce to it any such recording;
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(iii) to retain, for a period of one year, a transcript of every news programme included in the licensed service;
(iv) at the request of the Authority or of a court of law, to produce to it any such news transcript and any other script or transcript
of a programme included in the licensed service which he is able to produce to it;
(v) to keep full logs for a twelve month period of all transmissions of the licensed service;
(vi) at the request of the Authority, or of a court of law, to produce to it such logs;
(vii) to adopt procedures to handle complaints from viewers and listeners.
3. (1) A licence for community radio services shall include conditions preventing the licensee from –
(a) utilising any of the frequencies allocated to Malta in terms of international agreements;
(b) interfering with any national broadcasting station received in Malta whether originating from Malta or from abroad;
(c) interfering with any of the nationwide radio services;
(d) having more power than is reasonably required for the purpose of transmission. The Authority shall, in conjunction with
the Malta Communications Authority, establish such amount of reasonable power and, in doing so, shall take into account the variations
which occur from place to place due to the topography of the locality involved;
(e) including anything in programmes which offends against good taste or decency or is likely to encourage or
incite to crime or to lead to disorder or to be offensive to public feeling;
(f) transmitting news or current affairs programmes except of a community nature; and
(g) utilising an allocated frequency for less than 20 hours per week.
(2) Such a licence for community radio services shall also contain, where applicable:
(a) conditions enabling the supervision and enforcement of technical standards by the Authority following consultation
with the Malta Communications Authority in connection with the provision of the licensed service (including the use of the
allocated frequency); and
(b) conditions approved by the Authority following consultation with the Malta Communications Authority relating to the broadcasting
equipment to be used by the licensee.
4. A broadcasting licence may also include such other conditions as the Authority deems necessary including conditions relating to
programme quality standards and minimum technical standards to ensure acceptable quality broadcasting.”.
Copyright Act, there shall be substituted the following:
“(a) if the retransmission is in pursuance of a
‘must carry’ requirement in conformity with the Electronic
Communications (Regulation) Act; and”.
A 561
Deletion of the Second Schedule of the principal Act.
Consequential amendment to the Copyright Act.
Cap. 415. Amendment of article
16H of the principal
Act.
A 562 VERŻJONI ELETTRONIKA
(a) in article 16H(3)(b), in the Engish text, for the words “if a media service provider has its head office in one Member
State” there shall be substituted the words “if a media service provider has its head office in Malta”;
(b) Article 16H(3)(c) shall be substituted by the following:
“(c) if a media service provider has its head office in Malta but decisions on the audiovisual media service are taken in a third
country, or vice-versa, it shall be deemed to be established in Malta, provided that a significant part of the workforce involved
in the pursuit of the audiovisual media service activity operates in Malta.”;
(c) in article 16H(4) for the words “that Member State” there shall be substituted the word “Malta” wherever they occur; and
(d) in article 16H(6) for the words “in one or more Member States” there shall be substituted the word “Malta”.
Amendment of article
16P of the principal
Act.
Amendment of the
Third Schedule.
(a) For paragraph 4 thereof, there shall be substituted the following:
“4. Advertising and teleshopping shall be readily recognisable and distinguishable from editorial content. Sponsorship of news
and current affairs programmes on radio shall be prohibited.”; and
(b) For paragraph 17 thereof, there shall be substituted the following:
“17. The amount of time given to advertising on radio services shall not exceed twenty-five per centum
within one hour period, provided that part of such advertising time may be aggregated to a continuous period not exceeding two
hours in each twelve hour period. For the purposes of this Schedule, a twelve hour period shall be understood to mean between
06.00 and
17.59 hours and between 18.00 and 05.59 hours.”.
A 563
Passed by the House of Representatives at Sitting No. 358 of 2nd June, 2011.
MichAel Frendo
Speaker
PAuline AbelA
Clerk to the House of Representatives
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