The Gazette 1985

GAZETTE

MARCH 1985

States. Article 10 guarantees a single but fundamental

right: the right to freedom of expression. This right

includes the freedom to hold opinions, the freedom to

receive information and ideas, and the freedom to impart

information and ideas without interference by public

authority and regardless of frontiers. It is being argued,

based on the Court of Justice's decision in Case 39/75

Rutili,

that Member States can be required in the name of

Community law to respect the freedoms enshrined in the

E.E.C. Treaty and in the European Convention on

Human Rights. Notwithstanding the dicta of the former

Supreme Court in

Re O'Laighleis

, and the present

Supreme Court in

Norris

-v-

Attorney General

, it is

submitted that, at least in the sphere of directly applicable

Community law, the provisions of the Convention are, in

effect, now a part of Irish law

. Articles 59 and 62 of the

Treaty, together with Article 10 of the Convention,

provide for cross frontier broadcasting in the

Community, provide for freedom of broadcasting and

freedom to receive broadcasting services albeit subject to

reservations principally in the area of public order and

public morality.

With the advent of the new technology of information,

we are tempted to ask whether a review of existing legis-

lation and case law concerning broadcasting is akin to

chasing a receding bus. The new technology may very well

wreck many assumptions upon which the legislation and

case law of both Member States and the Community is

based. That legislation and case law will have to be

reviewed. If we cannot overcome the "shock of change"

and adapt ourselves accordingly, we may very well

manage to survive but, perhaps, only at a "lower level of

development"

•

Notes

1. This article is a revised and shortened version of the Irish Report to

the 11th Congress of the Federation Internationale Pour le Droit

Europeen (F.I.D.E.) held in The Hague between the 19th and 22nd

September 1984. The Irish Report entitled

"Europe and the Media"

has been published together with other national reports, by F.I.D.E.

and Nederlandse Vereniging voor Europees Recht. The volume of

reports can be obtained from F.I.D.E. Secretariat, P.O. Box 63498,

2502JL, The Hague, at the price of FIs. 25.-. A further revised and

extended version of the Irish Report will be published shortly in the

Dublin University Law Journal. The views expressed by the authors

in this article do not necessarily reflect the views of any particular

body or institution.

2. John Whale in "

T h e Politics of the Media"

— Fontana/Collins

(1977).

3. See "

T h e Old World and the New Technologies"

— M. Godet and O.

Ruyssen, Commission of the European Communities (1981) p. 103.

"The Promise of the Coming Dark Age"

— Freeman (1976) p. 7.

5. See Interim Report of the Commission of the European

Communities to the European Parliament entitled "Realities and

Tendencies in European Television — Perspectives and Options",

Com(83) 229 final, pp.41

et seq.

6. See reply by the Minister for Communications to a Parliamentary

Question in Parliamentary Debates, Dail Eireann, vol. 354 col. 2667,

13 December, 1984.

7. [1982] IR 337.

7a. [1984] ILRM 373 at pp 381, 382.

8. See generally article "Free Speech and Federal Control: The US

Approach to Broadcasting Regulation" in

The Modern Law Review,

Vol. 39 p. 147 (1976).

9. Roger Errera in chapter entitled "Problems raised by the content of

Television Programs transmitted by Telecommunications

Satellites" in

The International

Law of Communications

(1971)

Oceana Publications Inc. p.97.

10. Section 4 of Telegraph Act 1869 (32 and 33 Vict.c.73) as amended by

4th Schedule Part 1 of Postal and Telecommunications Services Act,

1983 (No. 24 of 1983) and see

Regulation

and Control of Radio

Communication

in Canada

[1932] A.C. 304, P.C., at pp.315, 316.

11. Wireless Telegraphy Act, 1926 (No. 45 of 1926), Section 3, as

inserted by Wireless Telegraphy Act, 1972 (No. 5 of 1972), Section

11(b). See also Ministers and Secretaries (Amendment) Act, 1983

(No. 40 of 1983) which,

inter alia,

abolished the Office of Minister for

Posts and Telegraphs with effect from 2nd January 1984 and

transferred the functions of the Minister for Posts and Telegraphs to

the Minister for Communications.

12. Wireless Telegraphy Act, 1926, Section 11.

13. Broadcasting Authority Act, 1960 (No. 10 of 1960), Section 31(1), as

inserted by Broadcasting Authority (Amendment) Act, 1976 (No. 37

of 1976), Section 16. See also

The State (Lynch)

-v- Coozti

>'[1982] IR

337, S.C.

14. Wireless Telegraphy Act, 1926, Section 10; Broadcasting Authority

Act, 1960, Section 16(3)(b).

15. Broadcasting Authority Act, 1960, Section 16, as amended by

Broadcasting Authority (Amendment) Act, 1966 (No. 7 of 1966),

Section 5; Broadcasting Authority (Amendment) Act, 1976, Section

12; and Broadcasting Authority (Amendment) Act, 1979 (No. 36 of

1979) Section 3.

16. [1984] IERM 161 at 167 and [1984] ILRM 170.

17. Broadcasting Authority Act, 1960, Section 17, as inserted by

Broadcasting Authority (Amendment) Act, 1976, Section 13.

.Ibid,

Section 18(1B), as inserted by Broadcasting Authority

(Amendment) Act, 1976, Section 3.

19.

Ibid,

Section 18(1).

20.

Ibid.

Section 18(1 Kb).

21. Defamation Act, 1961 (No. 40 of 1961).

22. Copyright Act 1963 (No. 10 of 1963); Copyright (Foreign Countries)

Order 1978 (S.I. No. 132 of 1978); Copyright (Foreign Countries)

(No. 2) Order, 1978 (S.I. No. 133 of 1978). See

Performing

Rights

Society Ltd. -v- Martin Communal

Aerials Ltd..

[1982] ILRM 169

(Supreme Court).

23. Criminal Procedure Act, 1967 (No. 12 of 1967), Section 17. See also

Criminal Law (Rape) Act, 1981, Section 11.

24. Case 155/73 [1974] ECR 409.

25. Case 52/79 [1980] ECR 833.

26. [1974] ECR 409 at 437.

27. See also Case 277/82,

Auer

[1985] I CMLR 123.

28. Case 39/75 [1975] ECR 1219.

29. Com (84) 300 final. Green paper on the establishment of the

Common Market for Broadcasting, especially by satellite and cable;

Brussels 14 June 1984.

30. [1960] IR 93 at 125 per Maguire CJ.

31. Supreme Court, unreported, 22 April 1983 per O'Higgins C.J. at

pp 45, 47 of his majority judgment.

32. See John Temple Lang, "European Community Law, Irish Law and

the Irish Legal Profession — Protection of the Individual and Co-

operation between Member States and the Community", (1983)

5DULJ(ns)l, 3 and footnote 13 referring also to R.F.V. Heuston,

"Personal Rights under the Irish Constitution", (1976) 11 Ir Jur(ns)

205, 218.

33. See Alvin Toffler in "

Future

Shock".

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