Broadcasting Act, 2001
(Emphasis added) 5 May 2001
Making their own decisions
".. for the most part people are mautre viewers and listeneers who are capable of making their own decisions." (Minister Síle de Valera, Seanad, 20 February, 2001)
In a recently published extract (Sunday Tribune, 15 April) from Professor Joe Lee's new book, "The Shifting Balance of Power", he expresses concern about the ability of the public to evaluate their sources of information, especially television.
In the course of the passage of the recent Broadcasting Bill through the Seanad, the Minister, Deputy Sile de Valera, declared that, "for the most part people are mature viewers and listeners who are capable of making their own decisions". I take it what she means by that, is that viewers and listeners can see through distortion and lack of balance.
Well, fair play to them. It's more than I could say for myself, particularly when it is skilfully done, and I would not charge RTE with lack of skill.
Then what about information that is simply withheld from the audience? Do her "mature viewers and listeners" have some bush telegraph that I don't know about to tell them the missing information?
There is a problem here.
On the one hand, 80% of its audience (according to RTE) believes RTE to be "balanced and fair".
On the other hand, the Government Green Paper on Broadcasting, 1995, (page 163 in particular), the objective studies of the Family and Media Association, several decisions of the Broadcasting Complaints Commission, and the decision of the Supreme Court last year when RTE was found guilty of "interference with the Referendum process", all tell a different story.
It is surely a matter of concern that the Minister responsible does not see the dangers for democracy in this contradiction.
5 May 2001
Progress of the Bill
The Broadcasting Bill,1999, was signed into law by the President on 14 March 2001.
1. The Bill had been passed by Dáil Éireann on 14 December 2000, and by Seanad Éireann on 22 February 2001. It returned to the Dáil on 6 March for one amendment, and was (probably) finally passed on that day.
What follows is an account of the Bill's first day in the Seanad on 20 February, when an amendment calling for sanctions for breaches of the Act was, along with other amendments, tabled. The debate was adjourned after 6 hours to Thursday 22 February, when the Bill was passed, with only one (Government) amendment.
2. Seventy six amendments had been tabled. Anger was expressed by several opposition senators at the evident policy of the Minister, Deputy Síle de Valera, of not accepting any amendments, regardless of submissions. Not one amendment was in fact accepted.
Such was the frustration that votes were called on four occasions, even though the results were predictable in comfortable wins for the government. The votes were on the subjects of cross ownership, advertising directed at children, and subtitling for the hard of hearing.
In contrast to the treatment by the Minister, there was effusive praise from several Senators for RTE, and it was clear from the references to the increase in licence fee sought by RTE, that RTE was pushing an open door.
3. One of the grounds for the rejection by the Minister of controls on advertising directed at children was that, under the Bill, codes were now required to be established, on which, under the "Children's Stategy", children would have a right to be consulted, and their views would be "given due weight in accordance with their age and maturity." "I am happy," she added, to be in a position to support the new strategy at such an early stage in its life." She also said the Swedish ban had "not been entirely successful."
4. Senators Mary Henry, Pascal Mooney, Labhrás Ó'Murchú, and Brendan Ryan spoke to an amendment calling for sanctions where the law relating to objectivity was breached by RTE. The existing law was unique in not specifying sanctions for breaches.
This amendment was rejected by the Minister on the claimed grounds that:
1. The proposal would be a "retrograde step". "I do not have any great enthusiasm for placing restrictions ... on journalists". "I do not believe it is in the public interest to have broadcasters constantly looking over their shoulders..."
2. The onus on RTE would be greater than that on other broadcasters.
3. "...people are mature viewers and listeners who are capable of making their own decisions."
4. The position of the Broadcasting Complaints Commission was being strengthened (even though it was clear that the reverse was the case).
5. "...a matter for the broadcasters, the Authority and the Broadcasting Commission of Ireland to act in respect of breaches..."
Most of these points had already been countered in documents supplied to the Minister.(Comment:
The Minister's own remarks, in dismissing the call for sanctions, are themselves retrograde. They seem to suggest that s.18 of the Act is itself an irritation and an impediment.
The public is entitled to the highest standards of professionalism and of accountability from the public service broadcaster. Or else, it must forfeit the title, and the public funding that goes with it.
These remarks give a clear signal to RTE that the Minister is not unduly worried about impartiality and objectivity, and that they may indulge in breaches with even greater impunity than heretofore. In the light of the current abortion debate, and the official support of the NUJ for abortion, (plus other serious issues coming on-stream), this is a serious matter. What is now being endorsed by the Minister is less, not more, accountability.
It also makes a mockery of the elaborate plans contained in the Bill for codes of conduct for taste and decency, portrayal of violence and sexual conduct, advertising, etc, all of which are intended to be a significant occupation of the BCC and the Broadcasting Commission. These codes will also be devoid of any sanctions for breaches.
So what is the purpose of adding these new codes, which will be every bit as ineffective as the existing s.18 code, relating to impartiality and objectivity? Is the purpose diversionary, while they get on with promoting their own brand of social change?)
5. On Thursday, 22 February, a further 2.1/2 hours was spent in discussion, again without any amendment being accepted.
6. Notwithstanding the importance of the subject and the time spent on it, the debate did not feature in any comment whatever in the relevant RTÉ's Oireachtas Report.
(Comment: Dáil and Seanad proceedings are hot-wired to RTE at Montrose. Big Brother is watching.)
RTE's explanation for the omission of any mention of the Seanad debate, was "Editorial decision on the day", having regard to operational, staffing or story considerations.
6 March 2001
Broadcasting Bill, 1999
Outline of main provisions
- A new entity ("Digico") to be set up to build and operate the Digital Terrestrial Television (DTT) infrastructure.
- RTE's existing TV and radio transmission function to be separated from RTE and incorporated into Digico.
- The IRTC to become the Broadcasting Commission of Ireland (BCI). BCI to draw up codes and rules for taste and decency and advertising.
- Broadcasting Complaints Commission to remain in being. To be financed by BCI, thus making it effectively controlled by the BCI, instead of Department of Arts, Heritage, as at present.(The original plan was to close down the BCC and transfer its functions to the BCI)
- Public Service Remit to be defined. Licence fee to be applied only to relevant programmes.
6 March 2001
- TG4 to be established as an independent statutory entity.
Summarised from report of John Brett in FMA's Media Report for Autumn 1999)
Broadcasting Bill, 1999
(Sections 15 to 24 inclusive: limited editing where indicated)
Note added 5 March 2001:
The following is not now up to date.
Changes to the Bill as initated have been made. However, no changes have been made in areas relating to the effectiveness of the Broadcasting Complaints Commission, as had been advocated in "Power without responsibility"
ss.1 - 4 Preliminary and General
ss.5 - 14 Supply and Transmission of Programme Material Generally
Not shown below:
ss.25 - 29 Provisions in relation to the Authority
ss.30 - 35 Additional Broadcasting Services - Cable, Satellite Systems, etc, ss.36 - 47 Teilifís na Gaeilge
ss.48 - 56 Miscellaneous
1. Normal type = verbatim from Act
2. Italics, bold = Margin description, per Act.
3. Small, italics = abbreviated, not verbatim: also, Editor's comments.
4. Highlighting = by Editor.
STANDARDS IN BROADCASTING
(b) a code specifying standards to be complied with, and rules and practices to be observed, in respect of advertising, teleshopping material, sponsorship and other forms of commercial promotion employed in any broadcasting service or sound broadcasting service.
(b) the maximum period that shall be allowed in any given hour for the transmission of advertisements and teleshopping material on such a broadcasting service or sound broadcasting service, and the Commission may make different such rules with respect to different classes of broadcasting service or sound broadcasting service.
(4) The Commission shall submit to the Authority a draft of each of the codes it proposes to prepare under subsection (1) and shall have regard to any submissions made to it by the Authority in relation to each such draft that has been submitted to the Authority before it prepares the code concerned.
(5) The Commission shall make rules requiring each broadcaster to take specified steps to promote the understanding and enjoyment by-
(b) persons who are blind or partially sighted,
of programmes transmitted on any broadcasting service provided by him or her.
(6) Rules under subsection (5) may, in respect of any specified period beginning on or after the commencement of this subsection, require a broadcaster to ensure that a specified percentage of programmes transmitted on a broadcasting service provided by him or her in that period employs specified means by which the understanding and enjoyment by persons referred to in paragraphs (a) and (b) of that subsection of that percentage of programmes may be promoted.
(7) In subsection (6) "specified" means specified under, or in accordance with, the rules concerned.
(8) The Commission shall prepare a code specifying standards to be complied with, and rules and practices to be observed, in respect of the provision of a broadcasting service which has, as one of its principal objectives, the promotion of the interests of any organisation.
(9) The Commission shall from time to time as it considers appropriate prepare a code or make rules amending a code or rules prepared or, as the case may be, made under each provision of this section.
(10) The making or preparation of a code or rules under subsection (9) shall be subject to the like (if any) consents and conditions as the code or rules that the first-mentioned code or rules is or are amending.
(11) Pending the preparation of a code under paragraph (b) of subsection (1) and the making of rules under subsection (2), existing codes to remain in force.
(12) In this section "teleshopping material" means
material which, when transmitted, will constitute a direct offer to the
public for the sale or supply to them of goods or other property (whether
real or personal) or services.
(2) In this section "codes or standards" does not include codes or standards with respect to any technical aspect of the transmission of information by the means referred to in subsection (1).
(end of page 18)
(b) any code or rules prepared or made thereunder, and
(c) the terms and conditions of any contract entered into by it thereunder.
(2) Notwithstanding the repeal by section 3 of section 18A of the Act of 1960, the Commission shall continue in being.
(3) The Commission shall consist of not less than 7 nor more than 9 members.
(4) The members of the Commission shall be appointed by the Government.
(5) Where the number of members of the Commission for the time being is 7, not less than 3 of them shall be men and not less than 3 of them shall be women.
(6) Similar provision to ss.5 where the number of members is 8 or 9.
(7) Member immediately before the commencement of this section to continue in office…
(8) Term of office to be 5 years.
(9) Resignation of a member.
(11) There shall be paid to members of the Commission such remuneration (if any) and allowances (if any) as the Minister, with the consent of the Minister for Finance, from time to time determines.
(end of page 19)
(12) Removal from office.
(13) Disqualification on nomination to Seanad, or as a candidate for Dail, or on election to EP.
(14) TS's Senators, and MEP's disqualified.
(15) Members, officers and servants of RTE Authority, the BCC, or T na G, disqualified.
(16) Government to appoint chairperson.
(17) Chairperson ceases to hold office if ceasing to be a member.
(18) Resignation of chairperson.
(19) Similar to ss.17.
(20) Effect of vacancies.
(22) BCC to regulate its procedure and practice.
(end of page 20)
(2) Subject to subsection (3), the Commission shall defray the expenses incurred by the Broadcasting Complaints Commission in performing its functions out of moneys paid to the Commission under section 20 (inserted by section 52) of the Act of 1988.
(3) Where in the opinion of the Commission an expense incurred by the Broadcasting Complaints Commission in performing its functions is of an exceptional nature, the Commission may, in lieu of defraying the whole or a part of that expense out of moneys referred to in subsection (2), defray the whole or a part of the expense out of moneys paid to it under subsection (4).
(4) The Minister, with the consent of the Minister for Finance, may pay to the Commission an amount equal to the amount, or a part thereof, of an expense referred to in subsection (3) for the purpose of enabling the Commission to defray the amount of that expense or, as the case may be, that part of it in respect of which that payment is made.
(5) Section 8 of the Act of 1976 is hereby amended by the substitution of the following subparagraph for subparagraph (iii) of paragraph (a):
"the Commission" means the Broadcasting Complaints Commission.
(2) Subject to the provisions of this section, the Commission may investigate and decide upon any of the following complaints-
(b) a complaint that in broadcasting a programme specified in the complaint, a broadcaster either did not comply with one or more of the said requirements or was in breach of the prohibition contained in section 18(1A) (inserted by the Act of 1976) of the Act of 1960 or, as the case may be, in paragraph (d) of section 9(1) of the Act of 1988 (including that section or paragraph as applied by this Act),
(end of page 21)
(c) a complaint that by broadcasting matter specified in the complaint, a broadcaster failed to comply with the requirements of section 31(1) (inserted by the Act of 1976) of the Act of 1960 as regards an order made under that section (including an order under that section which has effect by virtue of section 12 (as amended by this Act) of the Act of 1988),
(d) a complaint that on an occasion specified in the complaint, there was an encroachment by a broadcaster contrary to section 18(1B) (inserted by the Act of 1976) of the Act of 1960 or paragraph (c) of section 9(1) of the Act of 1988 (including that section or paragraph as applied by this Act),
(e) a complaint that on an occasion specified in the complaint a broadcaster failed to comply with a provision of a code under section 15(1)(a),
(f) a complaint that on an occasion specified in the complaint a broadcaster failed to comply with a provision of a code under section 15(1)(b) or of a code under section 4 of the Broadcasting Act, 1990, continued in force under section: 15(11),
(g) a complaint by a person that in a broadcast by a broadcaster which is specified in the complaint an assertion was made of inaccurate facts or information in relation to that person which constituted an attack on that person's honour or reputation.
(ii) if it relates to 2 or more such broadcasts, the date of the earlier or earliest, as the case may be, of those broadcasts,
(b) in case the complaint relates to 2 or more related broadcasts of which at least 2 are made on different dates, the later or latest of those dates.
(5) Where a complaint is made to the Commission and a person employed by the broadcaster concerned requests, for reasons specified by him or her the Commission to afford him or her an opportunity to comment on the complaint, the Commission shall, having considered the reasons so specified, afford to the person such an opportunity if, but only if, they are satisfied that an interest of the person, being an interest which the Commission consider relevant to
(end of page 22)
the person's employment by the broadcaster concerned, may, because of the complaint, be adversely affected.
(6) When the Commission propose to consider a complaint referred to in subsection (2)(f), the Commission shall afford to the relevant advertiser an opportunity of making to the Commission submissions in relation to the relevant advertisement.
(7) As soon as may be after they decide on a complaint made under this section, the Commission shall send to -
(b) the broadcaster concerned, and
(c) if the complaint is in respect of a broadcast made on a broadcasting service which is not a free-to-air service provided by the Authority or Teilifis na Gaeilge, to the Broadcasting Commission of Ireland,
(8) In case the Commission decide on a complaint referred to in subsection (2)(f), as soon as may be after their decision, the Commission shall (in addition to complying with the requirement of sub- section (7)) send to the person with whom the broadcaster concerned agreed to broadcast the relevant advertisement (if he or she is not the person who made the complaint) a statement in writing of their decision.
(9) The consideration by the Commission of a complaint made to them under this section shall be carried out by the Commission in private.
(10) Unless they consider it inappropriate to do so, the Commission shall, as soon as may be after the making of the decision, publish particulars of their decision on a complaint in such manner as they consider suitable and, without prejudice to subsection (11), where they consider that the publication should be by the broadcaster concerned, or should include publication by the broadcaster concerned, the particulars shall be published by the broadcaster concerned in such manner as shall be agreed between the Commission and the broadcaster concerned.
(11) Without prejudice to subsection (10), the broadcaster concerned shall, unless the Commission consider it inappropriate for the broadcaster to do so, broadcast the Commission's decision on every complaint considered by the Commission in which the Commission found in favour, in whole or in part, of the person who made the complaint, including, in the case of a complaint under subsection (2)(g), any correction of inaccurate facts or information relating to the individual concerned, at a time and in a manner corresponding to that in which the broadcast to which the complaint relates took place.
(12) As regards proceedings under this section, the Commission shall not have any power to award to any party costs or expenses.
(13) A person shall not act as a member of the Commission in relation to any matter with respect to which he or she has a material financial or other beneficial interest.
(end of page 23)
(14) Subsection (2) shall not apply to a complaint which,
in the opinion of the Commission, is frivolous or vexatious, nor,
unless the Commission consider that there are special reasons for investigating
the complaint (which reasons shall be stated by the Commission when giving
their decision), shall that subsection apply to a complaint which is withdrawn.
(2) A recording made by a person under this section shall be retained by that person for such period as stands determined by the Broadcasting Complaints Commission for the purposes of this section, and when a complaint is being investigated by the Commission under section 20, the recording of the broadcast to which the complaint relates, together with the recording, made and being retained pursuant to this section, of any other broadcast which in the opinion of the Commission is relevant to that broadcast, shall be supplied by the person to the Commission on a request made by the Commission at any time during such period.
(3) The making or retaining of a recording in compliance
with this section shall not constitute a contravention of section 2 or
3 of the Performers' Protection Act, 1968, or an infringement of copyright,
and nothing contained in the Copyright Act, 1963, shall be construed as
prohibiting or restricting the making of such a recording.
PROVISIONS IN RELATION TO THE AUTHORITY
(2) Without prejudice to the generality of subsection (1), the Authority shall ensure that the programme schedules of the broadcasting service referred to in that subsection -
(end of page 24)
(b) provide programmes of news and current affairs in the Irish and English languages, including programmes that provide coverage of proceedings in the Houses of the Oireachtas and the European Parliament, and
(c) facilitate or assist contemporary cultural expression.
(b) by making such other alterations to subsection (2) as are necessary or expedient in consequence of the addition of such provisions.
(5) Nothing in subsection (3) or (4) shall be construed as enabling a requirement to be imposed on the Authority with respect to the manner in which any particular programme broadcast on the broadcasting service referred to in subsection (1) is made or the manner in which any decision of an editorial nature relating to the broadcasting of such a programme is made.
(6) Where the Minister proposes to make an order under this section, the Minister shall -
(b) publish a notice of his or her intention to make such an order in at least one newspaper circulating in the State,
(c) invite, by means of that notice or such other means as he or she considers appropriate, comments from members of the public in relation to the order proposed to be made, and
(d) publish in such manner as he or she considers appropriate a statement outlining the consultations that have been carried out under paragraph (a) and any comments received by him or her pursuant to the invitation referred to in paragraph (c) and indicating a place at which any document furnished to the Minister by a person referred to in paragraph (a) in the course of consultations under
(end of page 25)
that paragraph or by a member of the public pursuant to the said invitation may be inspected (and such a document shall, accordingly, be made available at that place for inspection at all reasonable times before a draft of the order concerned is laid before the Houses of the Oireachtas under subsection (7)).
(8) The amount paid to the Authority in each financial year under section 8 of the Act of 1976 shall be used by the Authority solely for the purposes of -
(b) complying with its duty under section 17 of the Act of 1960,
(c) exercising all or any of the powers conferred on it by subsection (2) (other than paragraphs (bb) and (bbb) (inserted by this Act) thereof) of section 16 of the Act of 1960, and
(d) providing, pursuant to its powers under the Broadcasting Authority Acts, 1960 to 1999, any service (other than a broadcasting service) for the benefit of the public.
(10) Without prejudice to sections 25(1) and 26 of the Act of 1960, the Authority shall, as soon as may be after the end of each financial year, make a report to the Minister of the use it has made, with regard to, respectively, the television broadcasting service and the sound broadcasting service referred to in subsection (1), of the moneys paid to it under section 8 of the Act of 1976 in that year for the purpose of the activities, during that year, referred to in paragraphs (a), (b) and (c) of subsection (2) and subsection (8)(d).
(11) The Minister shall cause copies of each report made to him or her under subsection (10) to be laid before each House of the Oireachtas.
(12) Nothing in this section shall be construed as preventing
the Authority from including in the programme schedules referred to in
subsection (2) programmes made outside the State.
End of extracts from Broadcasting Bill, 1999
(End of this part of page 26)
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