Broadcasting Authority imminent

Satellite uplinkThe Broadcasting Act, 2009 (pdf) sets the regulatory framework for broadcasting services in Ireland. It consolidates all Irish broadcasting legislation into a single Act, and establishes a new Broadcasting Authority of Ireland (BAI, incorporating the functions of the current Broadcasting Commission and RTÉ Authority). According to Paul Cullen in today’s Irish Times, the BAI is to be established this week:

A new authority with powers to regulate all broadcasting, both commercial and RTÉ, is due to come into existence this week.

The Broadcasting Authority of Ireland (BAI) is expected to begin operations next Tuesday once the Cabinet approves five nominations to its board by Minister for Communications Eamon Ryan. The remaining four board members will be appointed by the Government on the nomination of the Joint Oireachtas Committee on Communications.

A little while ago, the Sunday Business Post reported that the Committee has decided to advertise those posts, so that it will be some time before they are appointed and that the Board will be only partially in place this week. Whether fully or partially established, there will be much for it to. For example, Cullen reports that

… One of the first tasks of the new authority will be to draw up new rules governing the advertising of junk foods on television, something which is specifically provided for in the new legislation. A new code to govern religious advertising is also in planning. …

Inevitably, however, not all of its proposed work has met with approval. For example, writing in yesterday’s Sunday Independent, Colum Kenny also noted that the BAI is expected to be established this week, but raises some alarm bells:

Offence clause may chill broadcasters

Curb on offensive material is only one of the tricky issues facing new watchdog, says Colum Kenny

THE new Broadcasting Authority of Ireland (BAI) has powers to fine broadcasters that “cause offence”. … The Broadcasting Act 2009 has introduced a duty on broadcasters to ensure that “anything which may reasonably be regarded as causing harm or offence” is not broadcast. …

The Department of Communications said last week that the new provision simply replaces former requirements relating to “taste and decency” and is in line with international practice. … Causing offence can be a constitutional right. It is also a good thing if it shakes people out of complacency about institutional hypocrisy or challenges personal misbehaviour. … Just how the BAI will interpret its duty to stop all broadcasters from causing harm or offence will emerge when complaints are made to it or to its new Broadcasting Compliance Committee. The existing BCI has been slow to intervene in the provision of content, allowing considerable freedom to broadcasters to do as they wish. …

Section 39(1) of the Act provides in part (with emphasis added):

Every broadcaster shall ensure that—

(d) anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster, and
(e) in programmes broadcast by the broadcaster, and in the means employed to make such programmes, the privacy of any individual is not unreasonably encroached upon.

Like Colum, I am also uncomfortable with elements that provision, but a similar offence clause in the UK survived challenge in R v BBC ex parte Pro Life Alliance [2004] 1 AC 185, [2003] UKHL 23 (10 April 2003), and I doubt that an Irish court would come to a different conclusion.

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