ACT No. VIII of 2011 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.

I assent.

(L.S.) G eorge A bela

President

6th June, 2011

ACT No. VIII of 2011

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:-

The title of this Act is the Broadcasting (Amendment)

Act, 2011 and it shall be read and construed as one with the

Broadcasting Act, hereinafter referred to as “the principal Act”.

Article 10 of the principal Act shall be amended as

follows

(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

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

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.

(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.”.

Subarticle (1) of article 11 of the principal Act shall be

amended as follows

(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.”.

Article 13 of the principal Act shall be amended as

(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.”.

Article 16 of the principal Act shall be amended as

(a) for the proviso to subarticle (1) thereof, there shall

be substituted the following

“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.”.

Article 16A of the principal Act shall be deleted.

Subarticle (4) of article 16M of the principal Act shall be

amended as follows

(a) in paragraph (b) thereof, for the words “provider

falls.” there shall be substituted the words “provider falls; or”;

(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.”.

In article 17 of the principal Act, for the definition

“Minister” there shall be substituted the following

“ “the Minister” means the Minister responsible for

communications; and”.

Immediately after subarticle (5) of article 18 of the

principal Act there shall be added the following subarticle:-

“(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.”.

Immediately after subarticle (3) of article 21 of the

principal Act, there shall be added the following new subarticle

“(4) For the purposes of this article, the term “teletext

transmissions” shall include electronic programme guides and

radio data systems.”.

In the first proviso to subarticle (1) of article 23 of the

principal Act, for the words “all classes of radio services”, there

shall be substituted the words “all classes of radio and television

broadcasting services” .

For article 35 of the principal Act there shall be

substituted the following

(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.”.

13. For article 40 of the principal Act there shall be

substituted the following

(1) The Authority shall appoint and license a

network

operator (hereinafter referred to as “the network

operator”) to run the general interest objective network

general interest licensed by the Malta Communications Authority in

broadcasting 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.

14. For the First Schedule to the principal Act there shall be

substituted the following

“FIRST SCHEDULE

Article 16 (3)

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;

(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.”.

15. The Second Schedule to the principal Act shall be

deleted.

16. For paragraph (a) in subarticle (2) of article 7 of the

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”.

17. Article 16H of the principal Act shall be amended as

follows

(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”.

18. For the words “Compliance with any authorization

granted” of the principal Act there shall be substituted the words

“Compliance with any notification made”.

19. The Third Schedule to the Broadcasting Act shall be

amended as follows

(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.”.

Passed by the House of Representatives at Sitting No. 358 of 2nd June, 2011.

M ichael F rendo

Speaker

P auline A bela

Clerk to the House of Representatives