The Gazette 1985

GAZETTE

MARCH 1985

Regulation of the Media: Irish and European Community Dimensions 1

by Eamonn G. Hall, Solicitor and Patrick J.C. McGovern, Solicitor

T HE "term "media" has been described as being "unattractive and vague" 2 . However, for our purposes, the term "media" can be conveniently limited to broadcasting — radio, television and cable. The present decade and the final decade of this century will witness several technological revolutions. One such revolution will involve the technology of information. Telecommunications satellites, optical-fibre cables and microelectronics will be instrumental in the technological revolution. Telecommunications satellites will increase the capacity and improve the quality of radio, television, facsimile and telephone transmissions. Services such as direct television broadcasting, electronic mail and teleconferencing will be offered via telecommunications satellites. Optical-fibre cables will be used for the transmission and distribution of programmes. Television receivers and video-recorders will be further developed. Problems will arise from a "surfeit of technology rather than its inadequacy" 1 . L.S. Stavrianos has pointed out that "the Roman Empire was hobbled by technological stagnation, but the problem facing the world today is the exact opposite; how to make rational and humane use of a powerful and proliferating technology" 4 . The World Administrative Radio Conference of the International Telecommunications Union held in Geneva in 1977 adopted rules for Europe, Africa and Asia concerning the allocation of frequencies and orbital positions for geostationary direct broadcasting satellites. Most countries in Europe are being authorised to use up to five television channels each. Although the 1977 Conference allocated frequencies and orbital positions on a national basis, there will be an inevitable "overspill" where the satellite transmissions will be capable of being received beyond the boundaries of the target area. Following the 1977 decision, Ireland shares the orbital position of 31° west with the United Kingdom, Spain, Portugal and Iceland. Thus, any Irish satellite will have access to an extensive market. A direct broadcasting satellite remains in a circular orbit some 36,000 kilometres above the Equator. It will pick up signals beamed from a ground station and relay them back to earth once the technically necessary conversion and amplification processes have been completed. With the aid of a special aerial some 90cm in diameter and certain

electronic apparatus, the signals relayed from the satellite can be received directly by individual viewers 5 . The Irish Government have sought proposals for the provision of an Irish satellite network and an Irish direct broadcasting satellite service preferably with some t e l e c ommun i ca t i ons capacity 6 . National and international consortia have submitted proposals for the new service. To date no decision has been publicly made by the Government in the matter. Experts consider that by the end of the eighties European countries would, on average, have 30 cable television channels, 3 television channels for direct broadcasting by satellite (DBS) and three traditional television channels. There could be 10 hours of transmissions a day on each channel. The new technology will bring the era of universal accessibility closer. Legal problems will then arise which have not been encountered before. Article 40.6.1° of the Constitution provides that the State guarantees liberty for the exercise, subject to public order and morality, of the right of citizens to express freely their convictions and opinions. Article 40.6.1.° i. specifically states that ". .. the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State". The publication or utterance of blasphemous, seditious or indecent matter is declared to be an offence in Art. 40.6.1.° i. of the Constitution, and to be punishable in accordance with law. The Supreme Court in The State (Lynch) -v- Coonev 1 noted that Article 40.6.1° enabled the State, in certain circumstances, to control the rights of freedom of expression and free speech. O'Higgins C. J., delivering the judgment of the Court, observed: "The basis of any attempt at control must be, according to the Constitution, the overriding considerations of public order and public morality. The constitutional provision in question refers to 45 Broadcasting in Ireland General