Advertising, Sponsorship and Teleshopping

L.N. 300 of 2005

EUROPEAN UNION ACT

(CAP. 460)

Advertising, Sponsorship and Teleshopping

(Protection of Consumers’ Interest)

(Television Broadcasting Injunction) Order, 2005

IN exercise of the powers conferred by sub-article (2) of article 4

of the European Union Act, the Prime Minister, has made the following

Order>-

(1) The title of this Order is the Advertising, Sponsorship Citation and date of

and Teleshopping (Protection of Consumers’ Interest) (Television commencement.

Broadcasting Injunction) Order, 2005.

(2) This Order shall come into force on the 1 st September,

2005. (1) In this Order, unless the context otherwise requires -

Interpretation.

“the Act” means the Broadcasting Act<

“the competent authority” means the Broadcasting Authority

as established by the Constitution of Malta<

“the Directive” means the provisions of Directive 98#27#EC

of the European Parliament and of the Council of 19 th May, 1998

on injunctions for the protection of consumers’ interests<

“the Television Without Frontiers Directive” means Articles

10 to 21 of Council Directive 89#552#EEC of 3 rd October, 1989 on

the coordination of certain provisions laid down by law, regulation

or administrative action in Member States concerning the pursuit

of television broadcasting activities (OJ L298, 17.10.1989, p. 23)

as amended by Directive 97#36#EC (OJ L202, 30.7.1997, p. 60)<

“qualified entity” means any body or organization which,

being properly constituted according to the law of a Member State,

has a legitimate interest in ensuring that the provisions referred to

in article 3 of this Order are complied with and, without prejudice

to the generality of the foregoing, includes>

(a) a registered consumer association within the

meaning of Part IV of the Consumer Affairs Act<

(b) one or more independent public bodies, having a

legitimate interest in ensuring the protection of the collective

interests of consumers of television advertising, sponsorship

and teleshopping in other Member States or EEA States in

which such bodies exist<

(c) voluntary organisations in other Member States or

EEA States whose purpose is to protect the interests referred

to in paragraph (a) of this definition in accordance with the

criteria laid down by their national law<

(d) organisations recognised by the competent

authority as collectively representing professional

broadcasting services< or

(e) any qualified entity from a Member State or EEA

State included in the list of qualified entities<

“European Community” means the organisation established

by the Treaty of Rome in 1957 and amended institutionally and

otherwise in 1986 by the Single European Act, in 1993 by the

Treaty on European Union, in 1997 by the Treaty of Amsterdam

and in 2001 by the Treaty of Nice and as amended by accession

agreements and as may be further amended from time to time<

“the Commission” means the Commission of the European

Community<

“list of qualified entities” means the list compiled and updated

by the Commission and published in the Official Journal of the

European Communities listing the qualified entities in Member

States and EEA States in accordance with Article 4 of the Directive<

“Court of Appeal” means the Court of Appeal sitting in its

inferior jurisdiction as constituted in terms of sub-article (6) of

article 41 of the Code of Organization and Civil Procedure<

“EEA State” means any State which is a contracting party to

the agreement on the European Economic Area signed at Oporto

on the 2 nd May, 1992 as amended by the Protocol signed at Brussels

on 17 th March, 1993 and as amended from time to time<

“Member State” means a member of the European

Community<

(2) Words and expressions used in this Order which are

also used in the Act shall have the same meanings as in the Act.

The object of this Order is to implement the provisions of the Object.

Directive, as applicable to television advertising, sponsorship and

teleshopping contained in the Television Without Frontiers Directive

as transposed in the Act, and shall be interpreted and applied accordingly.

This Order applies to any television advertising, sponsorship Scope.

and teleshopping referred to the Television Without Frontiers Directive

as transposed by the Act when advertising, sponsorship and teleshopping

is broadcast by any person licensed to provide broadcasting services

under the provisions of the Act.

(1) Where a qualified entity wishes to seek a compliance Application for

compliance orders

order, it shall submit its written application to the competent authority. by qualified entities.

In its application, it shall satisfy the competent authority that it has tried

to achieve the cessation of the infringement in consultation with either

the defendant or both the defendant and another qualified entity of the

Member State or EEA State in which the injunction is sought. The

competent authority shall only entertain a written application if the

qualified entity shows to its satisfaction that the cessation of the

infringement was not achieved within two weeks after the request for

consultation was received.

(2) Where the qualified entity is from another Member State

or EEA State, the competent authority shall treat the list of qualified

entities published by the Commission as conclusive proof of the legal

capacity of the legal entity to present such written application in Malta.

(3) The competent authority shall, at the request of a

qualified entity from Malta, communicate to the Commission the name

and objects of such entities and that such qualified entity should be

added to the list of qualified entities so as to facilitate the redress of

inter-community infringements.

(4) Before proceeding for the issue of a compliance order

under article 6, the competent authority shall, if it considers it to be

possible and reasonable to do so, seek first to achieve voluntary

compliance by a person licensed to provide broadcasting services under

the provisions of the Act and other persons involved, in accordance

with this Order, the Act or any other law dealing with consumer rights

and protection.

(5) For the purposes of this Order, an infringement occurs

when any act is committed contrary to the Television Without Frontiers

Directive as transposed by the Act which harms the collective interests

of consumers.

(1) Where the competent authority feels it reasonably

appropriate or necessary for the protection of consumers, it may, on a

written application to it by a qualified entity, issue a compliance order

against any person licensed to provide broadcasting services under the

provisions of the Act for one or more of the following purposes>-

(a) ordering any such person to cease broadcasting of any

advertisement, sponsorship or teleshopping which the competent

authority considers to be in breach of the provisions of the Act

regulating advertisements, sponsorship and teleshopping<

(b) requiring such person to take any measures specified in

the compliance order, within the time specified in the compliance

order to ensure that this Order is complied with<

(c) requiring such person to cease or desist from committing

a breach of this Order or of the provisions of the Act regulating

advertisements, sponsorship and teleshopping.

(2) The competent authority shall, when issuing a

compliance order under this regulation -

(a) serve a copy of the compliance order on each person

against whom the order is made<

(b) include with the compliance order, information about

the right to institute an action before the Court of Appeal, in

accordance with article 9< and

(c) briefly state the reasons for issuing the compliance order,

which reasons shall be notified to each person against whom the

compliance order is issued and, if any, to the qualifying body on

whose application the compliance order is issued.

(3) No precautionary warrant or other order under any other

law shall be issued by any court or tribunal restraining or restricting the

competent authority from issuing a compliance order under this Order.

(1) It shall be at the discretion of the competent authority

whether or not to issue a compliance order after a written request by a

qualified entity has been made to it in terms of sub-article (1) of article

6. (2) If the competent authority decides not to issue a

compliance order after an application has been made to it by a qualified

entity, it shall, within seven days from the date of its decision, notify in

writing the qualified entity and the persons against whom the compliance

order is requested with its decision stating the reasons therefor.

(3) A qualified entity may within fifteen days from the date

of notification upon it of the decision of the competent authority not to

issue a compliance order, institute an action before the Court of Appeal

for the issue of an order requiring the competent authority to issue a

compliance order under article 6. The persons against whom the

compliance order is requested to be made shall be parties to the suit,

and it shall be the duty of the qualified entity to notify such persons

accordingly.

(4) In the exercise of its functions and powers under this

Order, the Court of Appeal shall in all cases act as expeditiously as

possible.

A compliance order issued by the competent authority shall Compliance order to

take immediate

come into force with immediate effect.

effect.

(1) A person against whom a compliance order has been Appeal from a

compliance order.

made, may, within fifteen days from receipt of notification of the

compliance order, appeal in writing to the Court of Appeal for the

revocation or amendment of the compliance order, giving detailed

grounds for the request. Such appeal may be made only on the following

grounds>-

(a) the competent authority has, in its decision wrongly

applied any of the provisions of this Order< or

(b) the decision of the competent authority constitutes an

abuse of discretion or is manifestly unfair.

(2) The Court of Appeal may confirm, change or cancel the

compliance order on any terms or conditions it considers appropriate.

(3) Where an appeal is instituted under sub-article (1), the

compliance order shall remain in force unless the Court of Appeal

specifically orders that the compliance order shall be stayed pending

the outcome of the appeal, subject to such conditions and amendments

as it may determine. In any such instance, the competent authority may

request the Court of Appeal to make an interim compliance order,

ordering that the compliance order shall, subject to such modifications

as the competent authority may suggest, continue in force pending the

final determination of the case instituted in accordance with sub-article

(1). An interim compliance order shall expire upon the final

determination of the case.

(4) Subject to this Order, the provisions of the Code of

Organization and Civil Procedure shall, mutatis mutandis, govern

appeals to the Court of Appeal.

The competent authority, when issuing a compliance order

under article 6, shall not be required to prove>–

(a)

actual loss or damage< or

(b) actual recklessness, negligence or fault on the part of

the person against whom the order is made.

(1) The competent authority may, for the better information

Competent authority

of the public>

(a) publish a copy of the compliance order made under order

6 against any such person, in full or in part< or

(b) order any person licensed to provide broadcasting

services under the provisions of the Act to publish a corrective

statement in relation to any contravention of this Order< or

(c)

take both measures mentioned in paragraph (a) and (b)

above.

(2) Publication in terms of sub-article (1) shall be made at

the expense of the person served with such notice and the provisions of

sub-article (7) of article 41 of the Act shall, mutatis mutandis, apply to

the person licensed to provide broadcasting services under the provisions

of the Act. Where such publication is not effected as aforesaid, the

competent authority may proceed to effect publication itself, in such

medium as it considers appropriate, in which case it shall have the right

to recover from the person on whom the notice is served, any expenses

incurred, as a civil debt, constituting an executive title for the purposes

of Title VII of Part I of Book Second of the Code of Organization and

Civil Procedure as if payment of the amount of the civil debt has been

ordered by a judgment of a court of civil jurisdiction.

The competent authority may in writing authorise the

chairman or a member thereof or any of its officers and employees or

any other person to perform any of its functions in relation to the

enforcement of this Order or exercise any power granted to it under

these provisions. Any such authorized person shall, when required,

produce the written authorisation signed by the competent authority.

(1) The competent authority may, for the purpose of Obtaining

information.

discharging its functions under this Order, require any person to provide

any information in any manner, including by>

(a)

answering any questions, orally or in writing< or

(b) producing any item as aforesaid as the competent

authority may consider to be necessary.

(2) Any such person shall promptly comply with any such

request.

(1) A person licensed to provide broadcasting services Failure to comply

under the provisions of the Act, shall be liable to an administrative with Order.

penalty in terms of article 15 if such person>–

(a)

fails to observe any other provision in this Order<

(b) fails to comply with a compliance order issued under

this Order< or

(c) refuses or fails to furnish information as required under

this Order or else provides false or misleading information.

(2) A person licensed to provide broadcasting services under

the provisions of the Act, shall be liable to an administrative penalty if

such person>–

(a) wilfully obstructs, assaults, threatens, resists or interferes

with the competent authority or any person delegated by it in terms

of order 12 or any public officer in the exercise of his duties under

this Order or attempts so to do< or

(b) uses threatening, abusive or insulting language to the

competent authority or any person delegated by it in terms of article

12 or any public officer in the course of duties.

(1) In the event of liability arising in terms of article 14 the Administrative

Chief Executive of the competent authority may by notice in writing penalties.

request the competent authority to impose on the person licensed to

provide broadcasting services under the provisions of the Act an Cap. 350.

administrative penalty in terms of article 41 of the Act and the procedure

laid down in that article shall mutatis mutandis apply.

(2) In issuing the charge against such person, the Chief Executive

of the competent authority shall also comply with the procedure set out

in the Special Administrative Procedure Regulations, 2000.

Nothing in this Order shall prejudice or limit the exercise of

Other administrative

the powers of the competent authority to take administrative measures

or impose penalties under the Act, against a person licensed to provide

broadcasting services under the provisions of the Act who has

contravened any provisions of this Order or has failed to satisfy or

comply with any obligation or condition to which he may be subject

under the Act.

(1) Where an order or notice is required or authorised to be

served under this Order it shall be served in any of the following

manners>–

(a) by delivering it, or by sending it by registered mail to

the person on whom it is to be served at such person’s place of

residence, office or place of work< or

(b) in the case of a body corporate or other body of persons,

by delivering it to an officer or servant thereof at the registered

office or any other place of business, or sending it in a registered

letter addressed to any such office.

(2) In any case where it is not reasonably possible to effect

service in any manner stated in sub-article (1), service may be effected

by publishing a summary of such notice in the Gazette.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press