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

(L.S.) G eorge A bela

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) 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

(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.

Article 2 of the principal Act shall be amended as

(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

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.

For the title to Part III of the Broadcasting Act, there shall

be substituted the following

“Radio and Television Broadcasting Licences”.

Article 12A of the principal Act shall be deleted.

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

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.

Such an audiovisual media service is either a television

broadcast or an on-demand audiovisual media service;

or

(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;

“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.

(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

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.

(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.

(1) Except as provided in this Act and in any other

law

(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.

(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;

(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

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;

(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.

(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.

(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.

(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;

(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

(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.

(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.

(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.

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

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.”.

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

Amends

article 19

deleted.

of the principal Act.

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

M ichael F rendo

Speaker

P auline A bela

Clerk to the House of Representatives