The Gazette 1985

GAZETTE

MARCH 1985

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 16 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 17 , 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" 18 . All news broadcasts and current affairs broadcasts must be presented in an objective and impartial manner 19 . Specifically, current affairs broadcasts must be fair to all interests concerned 20 . 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 21 , contempt of court, the Official Secrets Act 1963, copyright 22 and reporting of court proceedings on the preliminary examination of an accused person 23 . 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.

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 8 . 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" 9 . 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 10 . 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 12 . 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 13 . The Government may take control of wireless telegraphy (radio communi- cation, cable, etc.) and broadcasting during an emergency 14 . 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 15 . 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.

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