The Gazette 1985

MARCH 1985

GAZETTE

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 30 , and the present Supreme Court in Norris -v- Attorney General 31 , 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 32 . 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" 33 . • 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. 4. "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. 18 .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. 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". 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.

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