Research report prepared for the australian communications and media authority

4.5Completed or planned reviews

One major purpose of the Bill is to combine in one act, the several acts which currently deal with broadcasting, dating back to 1960. The other major aspect of the Bill, as noted earlier, is to replace the BCI and the BCC with a new regulatory authority, the Broadcasting Authority of Ireland (BAI). This will mean that BAI will now combine the functions currently split between the BCI and the BCC, so that the BAI will also become the body to deal with complaints. The Bill also establishes two committees of the BAI: a Contract Awards Committee and a Compliance Committee. Notably, the members of these committees are not necessarily members of the BAI. Each committee will have eight members, four of whom will be appointed by the Minister for Communications, Energy and Natural Resources, and four of whom will be appointed by the BAI. The latter four will be two BAI members and two BAI staff members.³³⁵ Similar to the UK approach, the BAI is required to keep under review its performance (and the performance of these two statutory committees) to ensure that regulation does not impose unnecessary administrative burdens, or continue administrative burdens which are no longer necessary.³³⁶ It is interesting to note that the amended Bill now contains explicit mention of self-regulation and the possibility that the BAI could assist the establishment of a self-regulatory system for the drafting of codes and the establishment and administration of a self-regulatory system.³³⁷ However this provision does not seem to be intended for the regulation of traditional broadcasting. It has been included to fulfil obligations under the AVMS Directive and seems to be intended for use for non-traditional media or for content which may be transmitted from outside Ireland.³³⁸ Whilst it will be the BAI’s role to draft broadcasting codes and rules,³³⁹ the Compliance Committee will be responsible for monitoring and enforcing compliance by the licensee with the terms and conditions of its licence³⁴⁰; with statutory obligations; and with broadcasting codes and rules.³⁴¹ It is interesting to note the reference in the Bill to the Compliance Committee’s role of ‘monitoring’. The Compliance Committee is also required to investigate and decide upon complaints made.

The Bill continues the statutory obligations currently applicable to radio broadcasting. Thus:

• 
  The obligations referred to in sections 4.2.2.1 and above continue;³⁴²
  
• 
  The obligation to include a minimum level of news and current affairs reporting on radio continues (see section above);³⁴³
  
• 
  The limits on the amount of advertising which can be broadcast on a radio service continue (see section above);³⁴⁴
  
• 
  The prohibition on political and religious advertising, and advertising which relates to an industrial dispute remains (see section above);³⁴⁵
  

Part Four of the Bill establishes a complaints process.³⁴⁸ Under the statutory process, complaints may be made under clause 48(1) about clause 39 matters; namely, impartiality of news and current affairs; harm and offence (previously identified as ‘taste and decency’); encroachment upon an individual’s privacy. A licensee is required to give “due and adequate consideration” to such written complaints provided they are made in good faith, are not frivolous and so forth. A licensee must also prepare a code of practice, to be publicly available, including on the Internet, dealing with the process for handling complaints. Records of complaints and replies must be maintained.³⁴⁹ It is observed here that it is the broadcaster itself, not an independent body, which is dealing with complaints. Under the current regulatory arrangements, complaints are made to the BCC directly, there is no legislative provision or expectation that complaints must first be made to the broadcaster. In fact, the Bill sets up a two-track process. Whilst clause 47 provides for a complaints process to the broadcaster, clause 48 clarifies that complaints can still be made directly to the BAI – in fact, to the Complaints Committee. However, the Complaints Committee has discretion to refer a complainant back to the broadcaster, to be dealt with according to the broadcaster’s clause 47 code of practice.³⁵⁰ Otherwise, the process for dealing with complaints by the Complaints Committee follows the process currently required of the BCC (see section above). In the case of multiple complaints, clause 48 also empowers the Compliance Committee to review the matter and to make such reports, including to the Minister, as it considers appropriate.

The Bill introduces a new sanction: a monetary penalty. It is intended that this will provide more flexibility for the regulator given the limited sanctions currently available (see section above). The penalty will apply to breaches of the statutory programming and advertising obligations outlined above (clauses 39 and 41) as well as breaches of codes or rules. Clauses 53-54 deal with the instigation by the Compliance Committee of an investigation and the process for investigating the matter. The Committee may recommend to the BAI a financial sanction of not more than 250,000 Euros. It is a matter for the BAI to apply to court for the imposition of the sanction.³⁵¹ Clause 56 sets out matters to be taken into account by the BAI or the court in determining the amount of the sanction.

PART B: REPORT ON GERMANY; AN OVERVIEW