The Gazette 1985

GAZETTE

MARCH 1985

organs of public opinion and these must be held to

include television as well as radio. It places upon the

State the obligation to ensure that these organs of

public opinion shall not be used to undermine

public order or public morality or the authority of

the State".

There is also the right to communicate. Costello J. in

Attorney General

-v-

Paper link Ltd. \

stated that the "very

general and basic right to communicate . . . must be one of

those personal unspecified rights of the citizen protected

by Article 40.3.1°". This right to communicate, continued

Costello J., was not, however, an absolute right: the right

may be regulated by laws.

Broadcasting Legislation

Two features have characterised legislation to date

relating to broadcasting and wireless telegraphy in

Ireland, as elsewhere. Firstly, the electromagnetic

spectrum, the natural resource essential to broadcasting,

has been regarded as a limited resource owned by

Governments. The allocation of frequencies is the subject

of international negotiation between Governments. The

unrestricted right to use the electromagnetic spectrum as

some kind of property or personal right of individuals has

not to date been generally propounded. This may be so

because of the attitudes to such rights during the

formative years of broadcasting development

. However,

with the new technologies, the concept of limited access to

broadcasting is now being challenged. It is argued that

"both in the national and international field, we are

passing from a period of scarcity, and therefore of access

limited, controlled and distributed by States, to a period

of increasing abundance, and therefore of pluralism and

autonomy"

. Secondly, broadcasting has been regarded

as a powerful media form which is brought directly into

people's homes, and therefore, according to Govern-

ments, must be subject to regulation.

Thus, the Minister for Communications has, subject to

certain exceptions, exclusive privileges in relation to

telecommunications which includes broadcasting

. No

person may keep or have in his possession anywhere in the

State, apparatus for wireless telegraphy — which includes

broadcasting apparatus — without a licence from the

Minister for Communications". Certain types of

communication • are forbidden. Indecent messages or

communications and communications subversive of

public order may not be sent by wireless telegraphy

. The

Minister for Communications may, by order, direct the

Radio Telefis Eireann Authority to refrain from

broadcasting certain matter where the Minister is of the

opinion that the broadcasting of such matter would be

likely to promote or incite to crime or would tend to

undermine the authority of the State

. The Government

may take control of wireless telegraphy (radio communi-

cation, cable, etc.) and broadcasting during an

emergency

The Broadcasting Authority Act 1960, the principal

Act regulating the broadcasting service, empowered RTE

to establish and maintain a national television and sound

broadcasting service

. The 1960 Act provided that the

Minister for Posts and Telegraphs would not thereafter

exercise any of the powers conferred upon him by Part II

of the Wireless Telegraphy Act 1926 which empowered

him to acquire, establish and maintain broadcasting

stations. Thus, RTE has since 1960 enjoyed a

de facto

legal monopoly in broadcasting.

However, there are unlicensed radio stations (pirate

radios) operating throughout the country. There have

been several successful prosecutions of persons involved

in unlicensed broadcasting. Following a "search and

seizure" operation under The Wireless Telegraphy Acts

1926-1972 against two unlicensed broadcasting stations

(pirate radios) the constitutionality of the Wireless

Telegraphy Acts 1926-1972 was challenged. Counsel for

the plaintiffs in interlocutory applications in

Nova Media

Services Ltd.

-v-

The Minister for Posts and Telegraphs and

The Attorney General

and in

Sunshine Radio Productions

Ltd. -v- The Attorney General, Ireland and The Minister for

Posts and Telegraphs

claimed that any State monopoly

in respect of radio broadcasting was contrary to the

Constitution. Counsel argued,

inter alia,

that Article 45 of

the Constitution which sets out the directive principles of

social policy recognises an ideological preference for

private enterprise over State monopoly. Murphy J. in the

High Court considered that the Plaintiffs had made out a

stateable case on these constitutional claims. However, he

considered that the constitutional issues raised difficult

questions of law which called for detailed consideration

and could not be dealt with in interlocutory proceedings.

The Government is to introduce legislation to provide for

local radio under the control of an independent authority.

Legislation is also promised to provide tougher penalties

for those involved in unlicensed broadcasting.

The 1960 Act, as amended

, specified the general duty

of the RTE Authority. The Authority, in performing its

functions must in its programming,

inter alia,

"uphold the

democratic values enshrined in the Constitution,

especially those relating to rightful liberty of expression".

The Authority must not in its programmes and in the

methods employed to produce its programmes

"unreasonably encroach on the privacy of the

individual"

. All news broadcasts and current affairs

broadcasts must be presented in an objective and

impartial manner

. Specifically, current affairs

broadcasts must be fair to all interests concerned

. Apart

from the specific restrictions on broadcasting which we

have already mentioned, restrictions in the context of

public order, public morality, the authority of the State

and the necessity to hold a licence, there are further

restrictions under the general law. Such restrictions

include defamation

, contempt of court, the Official

Secrets Act 1963, copyright

and reporting of court

proceedings on the preliminary examination of an

accused person

Broadcasting and European Community Law

Relying on the principles enumerated in the following

Articles of the Treaty establishing the European

Economic Community — Article 2 (the promotion

throughout the community of a harmonious development

of economic activities); Article 3(0 (ensuring that compe-

tition is not distorted in the common market); Article

5 (Member States to refrain from any measures which

could jeopardise the attainment of the objects outlined in

the Treaty); Articles 9 to 37 (the principle of free

movement of goods); and Articles 59 to 66 (the principle

of free movement of services) — it is submitted that the

countries of the European Economic Community

constitute a "communications community". The free

movement of information and freedom of communica-

tion could be described as two of the "basic pillars" of the

European Economic Community.