ADVERTISING, SPONSORSHIP AND TELESHOPPING (PROTECTION OF CONSUMERS’ INTEREST) (TELEVISION

(TELEVISION BROADCASTING INJUNCTION)

SUBSIDIARY LEGISLATION 460.12

ADVERTISING, SPONSORSHIP

AND TELESHOPPING (PROTECTION OF

CONSUMERS’ INTEREST) (TELEVISION

BROADCASTING INJUNCTION) ORDER

1st September, 2005 *

LEGAL NOTICE 124 of 2005.

The title of this Order is the Advertising, Sponsorship and

Teleshopping (Protection of Consumers’ Interest) (Television

Broadcasting Injunction) Order.

(1)

In this Order, unless the context otherwise requires -

"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 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;

*See article 1(2) of this Order as originally promulgated.

(TELEVISION BROADCASTING INJUNCTION)

(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

St a t e s a n d E E A St a t e s i n a c c o r d a n c e w i t h A r t i c l e 4 o f t h e

Directive;

"Court of Appeal" means the Court of Appeal sitting in its

inferior jurisdiction as constituted in terms of article 41(9) 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 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 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

order, it shall submit its written application to the competent

authority. 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

(TELEVISION BROADCASTING INJUNCTION)

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

(TELEVISION BROADCASTING INJUNCTION)

(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

l a w s h a l l b e i s s u e d b y a n y co u r t o r t r i b u n a l r e s tr a i n i n g o r

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 article 6(1).

(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

come into force with immediate effect.

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

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

(TELEVISION BROADCASTING INJUNCTION)

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 of the public

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

article 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 paragraphs (a) and

(b).

(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

article 41(7) 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,

prod uc e t he w ri tt en au th ori sation signed by the competent

authority.

(TELEVISION BROADCASTING INJUNCTION)

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

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

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

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 article 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 Chief Executive of the competent authority may by notice in

writing request the competent authority to impose on the person

licensed to provide broadcasting services under the provisions of

the Act an 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

p r o c e d u r e s e t ou t i n t he S p e c i a l A d m i n is t r a t i v e P r o c e d u r e

Regulations.

Nothing in this Order shall prejudice or limit the exercise

of 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

(TELEVISION BROADCASTING INJUNCTION)

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.