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4 2001

BROADCASTING ACT, 2001

PART III

Standards in Broadcasting

Codes and rules with respect to programme material.

19. —(1) The Commission shall, upon being directed by the Minister to do so and in accordance with the provisions of this section, prepare—

(a) a code specifying standards to be complied with, and rules and practices to be observed, in respect of the taste and decency of programme material, the subject of a broadcasting service or sound broadcasting service, and, in particular, in respect of the portrayal of violence and sexual conduct in such material, and

(b) a code specifying standards to be complied with, and rules and practices to be observed, in respect of advertising, teleshopping material, sponsorship and other forms of commercial promotion employed in any broadcasting service or sound broadcasting service (other than advertising and other activities as aforesaid falling within paragraph (c)), and

(c) a code specifying standards to be complied with, and rules and practices to be observed, in respect of advertising, teleshopping material, sponsorship and other forms of commercial promotion employed in any broadcasting service or sound broadcasting service, being advertising and other activities as aforesaid which relate to matters likely to be of direct or indirect interest to children.

(2) A direction of the Minister under subsection (1) shall specify that the Commission shall give priority to the preparation of the code under paragraph (c) of that subsection before the preparation of the other codes under that subsection and the Commission shall give such priority in the preparation of the first-mentioned code accordingly.

(3) The Commission shall, in accordance with subsection (5), make rules with respect to—

(a) the total daily times that shall be allowed for the transmission of advertisements and teleshopping material on a broadcasting service or sound broadcasting service, being a service which consists of a compilation of programme material supplied pursuant to a contract entered into under this Act or the Act of 1988, and

(b) the maximum period that shall be allowed in any given hour for the transmission of advertisements and teleshopping material on such a broadcasting service or sound broadcasting service,

and the Commission may make different such rules with respect to different classes of broadcasting service or sound broadcasting service.

(4) The codes under subsection (1) and the rules under subsection (3) shall, respectively, provide for the matters required to be provided for by Chapters IV and V of the Council Directive.

(5) Before preparing a code or making a rule under this section, the Commission shall make available for inspection by any person who makes a request of it in that behalf a draft of the code it proposes so to prepare or the rule it proposes so to make and shall have regard to any submissions made to it, within such period as it specifies for the purpose, by that person in relation to the draft before it prepares the code or makes the rule concerned.

(6) The Commission shall cause to be published in at least one newspaper circulating in the State notice of the fact that, pursuant to subsection (5), a draft referred to in that subsection is available for inspection, of the place at which or the means by which the draft can be inspected and of the period specified by it under that subsection within which submissions may be made to it in relation to the draft.

(7) In preparing a code under paragraph (c) of subsection (1) the Commission shall, taking into account any relevant instrument made or relevant guidelines issued by any body in which are vested functions in relation to the welfare of children, have regard to—

(a) any research which it considers appropriate (including research under subsection (8)) conducted with respect to the effect of activities referred to in that paragraph on children, and

(b) the merits or otherwise and the feasibility of such a code containing a prohibition on a specified class or classes of such activity in so far as those activities relate to children in general or children under a particular age.

(8) The Commission may, for the purpose of performing its functions under paragraph (c) of subsection (1), conduct, or cause to be conducted, research with respect to the effect of activities referred to in that paragraph on children.

(9) The Commission shall make to the Minister a report in relation to the performance of its functions under subsections (1)(c) and (8) not later than 1 year from the date of the giving to it of the direction under subsection (1) and the Minister shall, as soon as may be after the receipt by him or her of the report, cause copies of it to be laid before both Houses of the Oireachtas.

(10) The Commission shall, once in each period of 3 years, beginning with the period of 3 years commencing on the date of the preparation of the code, review the effect of the code prepared under subsection (1)(c), and shall prepare a report in relation to that review and furnish the report to the Minister; the Minister shall, as soon as may be after the receipt by him or her of the report, cause copies of it to be laid before both Houses of the Oireachtas.

(11) The Commission shall make rules requiring each broadcaster to take specified steps to promote the understanding and enjoyment by—

(a) persons who are deaf or hard of hearing, and

(b) persons who are blind or partially sighted,

of programmes transmitted on any broadcasting service provided by him or her.

(12) Rules under subsection (11) may, in respect of any specified period beginning on or after the commencement of this subsection, require a broadcaster to ensure that a specified percentage of programmes transmitted on a broadcasting service provided by him or her in that period employs specified means by which the understanding and enjoyment by persons referred to in paragraphs (a) and (b) of that subsection of that percentage of programmes may be promoted.

(13) In subsection (12) “specified” means specified in, or in accordance with, the rules concerned.

(14) The Commission shall prepare a code specifying standards to be complied with, and rules and practices to be observed, in respect of the provision of a broadcasting service which has, as one of its principal objectives, the promotion of the interests of any organisation.

(15) The Commission shall from time to time as it considers appropriate prepare a code or make rules amending a code or rules prepared or, as the case may be, made under each provision of this section.

(16) The making or preparation of a code or rules under subsection (15) shall be subject to the like (if any) consents and conditions as the code or rules that the first-mentioned code or rules is or are amending.

(17) Pending the preparation of the codes under paragraphs (b) and (c) of subsection (1) and the making of rules under subsection (3), the provisions of a code under section 4 of the Broadcasting Act, 1990 , which are in force before the repeal by this Act of that section 4 and which correspond to the matters to which those codes or those rules will relate shall, notwithstanding the repeal of that section 4, continue in force and have effect in relation to each class of broadcaster in relation to whom they had effect before that repeal.

(18) In this section “teleshopping material” means material which, when transmitted, will constitute a direct offer to the public for the sale or supply to them of goods or other property (whether real or personal) or services.

Codes or standards with respect to certain types of information.

20. —(1) The Commission may co-operate with or give assistance to one or more persons (whether residing or having their principal place of business in the State or elsewhere) in the preparation by that person or those persons of codes or standards with respect to the transmission of information by any electronic means (other than by means of broadcasting), including by means of the Internet.

(2) In this section “codes or standards” does not include codes or standards with respect to any technical aspect of the transmission of information by the means referred to in subsection (1).

Functions of Commission in relation to enforcement of Act.

21. —(1) It shall be a function of the Commission to enforce—

(a) the provisions of Parts II, III and V of this Act,

(b) any code or rules prepared or made under this Act, and

(c) the terms and conditions of any contract entered into by it under this Act.

(2) Subsection (1) is without prejudice to the functions of the Broadcasting Complaints Commission under section 24 .

Broadcasting Complaints Commission.

22. —(1) In this section “the Commission” means the Broadcasting Complaints Commission.

(2) Notwithstanding the repeal by section 3 of section 18A of the Act of 1960, the Commission shall continue in being.

(3) The Commission shall consist of not less than 7 nor more than 9 members.

(4) The members of the Commission shall be appointed by the Government.

(5) Where the number of members of the Commission for the time being is 7, not less than 3 of them shall be men and not less than 3 of them shall be women.

(6) Where the number of members of the Commission for the time being is 8 or 9, not less than 4 of them shall be men and not less than 4 of them shall be women.

(7) A person who was a member of the Commission immediately before the commencement of this section shall continue in office as such a member for the remainder of the term of office for which he or she was appointed, unless he or she sooner dies or resigns from office.

(8) When appointing a member of the Commission, the Government shall fix his or her term of office which shall not exceed 5 years and, subject to subsections (12) and (13), the member shall hold his or her office on such terms and conditions (other than terms or conditions relating to remuneration or the payment of allowances) as are determined by the Government at the time of his or her appointment.

(9) A member of the Commission may at any time resign his or her office by letter addressed to the Government and the resignation shall take effect as on and from the date of receipt of the letter by the Government.

(10) A member of the Commission whose term of office expires by the effluxion of time shall be eligible for re-appointment.

(11) There shall be paid to members of the Commission such remuneration (if any) and allowances (if any) as the Minister, with the consent of the Minister for Finance, from time to time determines.

(12) A member of the Commission may be removed from office by the Government for stated reasons if, and only if, resolutions are passed by each House of the Oireachtas calling for his or her removal.

(13) Where a member of the Commission is—

(a) nominated as a member of Seanad Éireann, or

(b) nominated as a candidate for election to either House of the Oireachtas or to the European Parliament, or

(c) regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act, 1997 , as having been elected to the European Parliament,

he or she shall thereupon cease to be a member of the Commission.

(14) A person who is, for the time being, entitled under the Standing Orders of either House of the Oireachtas to sit therein or who is a member of the European Parliament shall, while he or she is so entitled or is such a member, be disqualified from becoming a member of the Commission.

(15) A member of the Authority, the Broadcasting Commission of Ireland or Teilifís na Gaeilge or an officer or servant of any such body shall be disqualified from becoming or being a member of the Commission.

(16) The Government shall from time to time as occasion requires appoint a member of the Commission to be chairperson thereof.

(17) The chairperson of the Commission shall, unless he or she sooner dies, resigns the office of chairperson or ceases to be chairperson under subsection (19), hold office until the expiration of his or her period of office as a member of the Commission.

(18) The chairperson of the Commission may at any time resign his or her office as chairperson by letter sent to the Government and the resignation shall take effect at the commencement of the meeting of the Commission held next after the body has been informed by the Government of the resignation.

(19) Where the chairperson of the Commission ceases during his or her term of office as chairperson to be a member of the Commission he or she shall also cease to be chairperson of the Commission.

(20) The Commission may act notwithstanding one or more vacancies among its members (including one or more vacancies that result in subsection (5) or (6) not being complied with).

(21) The quorum for a meeting of the Commission shall be determined by the Commission under subsection (22), but—

(a) the quorum so determined shall not be less than 5, and

(b) until it is so determined, the quorum shall be 5.

(22) Subject to the provisions of this Act, the Commission shall regulate its procedure and practice.

Services, facilities, etc. for Broadcasting Complaints Commission.

23. —(1) The Commission may supply or provide to the Broadcasting Complaints Commission, on such terms or conditions as the first-mentioned Commission may specify, any services (including services of staff), accomodation or facilities required by the second-mentioned Commission for the performance of their functions.

(2) Subject to subsection (3), the Commission shall defray the expenses incurred by the Broadcasting Complaints Commission in performing their functions out of moneys paid to the Commission under section 20 (inserted by section 58 ) of the Act of 1988.

(3) Where in the opinion of the Commission an expense incurred by the Broadcasting Complaints Commission in performing their functions is of an exceptional nature, the Commission may, in lieu of defraying the whole or a part of that expense out of moneys referred to in subsection (2), defray the whole or a part of the expense out of moneys paid to it under subsection (4).

(4) The Minister, with the consent of the Minister for Finance, may pay to the Commission an amount equal to the amount, or a part thereof, of an expense referred to in subsection (3) for the purpose of enabling the Commission to defray the amount of that expense or, as the case may be, that part of it in respect of which that payment is made.

(5) Section 8 of the Act of 1976 is hereby amended by the substitution of the following subparagraph for subparagraph (iii) of paragraph (a):

“(iii) the amount of any moneys paid in that year to the Broadcasting Commission of Ireland by the Minister under section 23 (4) of the Broadcasting Act, 2001, and”.

Functions of Broadcasting Complaints Commission.

24. —(1) In this section—

“broadcaster” means (in addition to the meaning assigned to that expression by section 2 (1)) a sound broadcasting contractor;

“the Commission” means the Broadcasting Complaints Commission.

(2) Subject to the provisions of this section, the Commission may investigate and decide upon any of the following complaints—

(a) a complaint that in broadcasting news given by it and specified in the complaint, a broadcaster did not comply with one or more of the requirements of section 18(1) (inserted by the Act of 1976) of the Act of 1960 or, as the case may be, of paragraphs (a) and (b) of section 9(1) of the Act of 1988 (including that section or those paragraphs as applied by this Act),

(b) a complaint that in broadcasting a programme specified in the complaint, a broadcaster either did not comply with one or more of the said requirements or was in breach of the prohibition contained in section 18(1A) (inserted by the Act of 1976) of the Act of 1960 or, as the case may be, in paragraph (d) of section 9(1) of the Act of 1988 (including that section or paragraph as applied by this Act),

(c) a complaint that on an occasion specified in the complaint, there was an encroachment by a broadcaster contrary to section 18(1B) (inserted by the Act of 1976) of the Act of 1960 or paragraph (e) of section 9(1) of the Act of 1988 (including that section or paragraph as applied by this Act),

(d) a complaint that on an occasion specified in the complaint a broadcaster failed to comply with a provision of a code under section 19 (1)(a),

(e) a complaint that on an occasion specified in the complaint a broadcaster failed to comply with a provision of a code under paragraph (b) or (c) of section 19 (1) or of a code under section 4 of the Broadcasting Act, 1990 , continued in force under section 19 (17),

(f) a complaint by a person that in a broadcast by a broadcaster which is specified in the complaint as assertion was made of inaccurate facts or information in relation to that person which constituted an attack on that person's honour or reputation.

(3) A complaint under subsection (2) shall be in writing and be made to the Commission not more than 30 days after—

(a) in case the complaint relates to one broadcast or to 2 or more unrelated broadcasts—

(i) if it relates to one broadcast, the date of the broadcast, or

(ii) if it relates to 2 or more such broadcasts, the date of the earlier or earliest, as the case may be, of those broadcasts,

and

(b) in case the complaint relates to 2 or more related broadcasts of which at least 2 are made on different dates, the later or latest of those dates.

(4) When the Commission propose to investigate a complaint made under this section, the Commission shall afford to the broadcaster to whom the complaint relates (hereafter in this section referred to as “the broadcaster concerned”) an opportunity to comment on the complaint.

(5) Where a complaint is made to the Commission and—

(a) a person employed by the broadcaster concerned, or

(b) if the making of any programme, the subject of the complaint, was commissioned by the broadcaster concerned, the person commissioned to make that programme,

requests, for reasons specified by him or her, the Commission to afford to him or her an opportunity to comment on the complaint, the Commission shall, having considered the reasons so specified, afford to the person such an opportunity if, but only if, they are satisfied that, as appropriate—

(i) an interest of the person referred to in paragraph (a), being an interest which the Commission consider relevant to the person's employment by the broadcaster concerned, or

(ii) the prospects of the person referred to in paragraph (b) obtaining further commissions in respect of programmes from the broadcaster concerned,

may, because of the complaint, be adversely affected.

(6) When the Commission propose to consider a complaint referred to in subsection (2)(e), the Commission shall afford to the relevant advertiser an opportunity of making to the Commission submissions in relation to the relevant advertisement.

(7) As soon as may be after they decide on a complaint made under this section, the Commission shall send to—

(a) the person who made the complaint,

(b) the broadcaster concerned, and

(c) if the complaint is in respect of a broadcast made on a broadcasting service which is not a free-to-air service provided by the Authority or Teilifís na Gaeilge, the Broadcasting Commission of Ireland,

a statement in writing of their decision.

(8) In case the Commission decide on a complaint referred to in subsection (2)(e), as soon as may be after their decision, the Commission shall (in addition to complying with the requirement of subsection (7)) send to the person with whom the broadcaster concerned agreed to broadcast the relevant advertisement (if he or she is not the person who made the complaint) a statement in writing of their decision.

(9) The consideration by the Commission of a complaint made to them under this section shall be carried out by the Commission in private.

(10) Unless they consider it inappropriate to do so, the Commission shall, as soon as may be after the making of the decision, publish particulars of their decision on a complaint in such manner as they consider suitable and, without prejudice to subsection (11), where they consider that the publication should be by the broadcaster concerned, or should include publication by the broadcaster concerned, the particulars shall be published by the broadcaster concerned in such manner as shall be agreed between the Commission and the broadcaster concerned.

(11) Without prejudice to subsection (10), the broadcaster concerned shall, unless the Commission consider it inappropriate for the broadcaster to do so, broadcast the Commission's decision on every complaint considered by the Commission in which the Commission found in favour, in whole or in part, of the person who made the complaint, including, in the case of a complaint under subsection (2)(f), any correction of inaccurate facts or information relating to the individual concerned, at a time and in a manner corresponding to that in which the broadcast to which the complaint relates took place.

(12) As regards proceedings under this section, the Commission shall not have any power to award to any party costs or expenses.

(13) A person shall not act as a member of the Commission in relation to any matter with respect to which he or she has a material financial or other beneficial interest.

(14) Subsection (2) shall not apply to a complaint which, in the opinion of the Commission, is frivolous or vexatious, nor, unless the Commission consider that there are special reasons for investigating the complaint (which reasons shall be stated by the Commission when giving their decision), shall that subsection apply to a complaint which is withdrawn.

Annual report of Broadcasting Complaints Commission.

25. —As soon as may be, but not later than 6 months, after the end of each year, the Broadcasting Complaints Commission shall make to the Minister a report of their activities during that year and the report shall contain such particulars (if any) as they think fit of decisions made by them pursuant to section 24 during that year, and the Minister shall, as soon as may be after the receipt by him or her of the report, cause copies of it to be laid before both Houses of the Oireachtas.

Holders of contracts to record programme material.

26. —(1) A person who is a holder of a contract entered into under the Act of 1988 or this Act shall, for the purposes of section 24 , record every item of programme material supplied by him or her under the contract in such manner as stands approved of by the Broadcasting Complaints Commission for the purposes of this section.

(2) A recording made by a person under this section shall be retained by that person for such period as stands determined by the Broadcasting Complaints Commission for the purposes of this section, and when a complaint is being investigated by the Commission under section 24 , the recording of the broadcast to which the complaint relates, together with the recording, made and being retained pursuant to this section, of any other broadcast which in the opinion of the Commission is relevant to that broadcast, shall be supplied by the person to the Commission on a request made by the Commission at any time during such period.

(3) The making or retaining of a recording in compliance with this section shall not constitute a contravention of any provision of Part III of the Copyright and Related Rights Act, 2000 , or an infringement of copyright, and nothing contained in the Copyright and Related Rights Act, 2000 , shall be construed as prohibiting or restricting the making of such a recording.

Transitional provision in relation to Broadcasting Complaints Commission.

27. —Notwithstanding the repeal by section 3 of sections 18A to 18C of the Act of 1960, anything commenced but not completed before the commencement of section 3 by the Broadcasting Complaints Commission under the said sections 18A to 18C may be carried on and completed by them after that commencement as if those sections had not been repealed.