1.            Introduction 

After having spent ten years of my working career at the Broadcasting Authority, I think that I can contribute at writing a short paper as to how Maltese Broadcasting Law can be updated.

Indeed, the Broadcasting Act was enacted in 1991, that is, more than eighteen years ago. Since then the enactment was amended piecemeal several times and the latest amendments are of last year. Moreover, Parliament will surely be amending the Act at least once more in 2010, to bring our law in line with the European Union Audiovisual Media Services Directive. This Directive had to be transposed into Maltese law by 19 December 2009. Furthermore, it is also known that the Government has fixed the analogue switch off date for 31 December 2010. This entails the making of fresh amendments to the Broadcasting Act, probably some time later on during this year. hence, there is no doubt that a lot of fast developments are taking place in this branch of the law and I would venture to say that we need to do some catching up as well at revisiting current provisions as I will explain hereunder.

2.            Legislative and Policy Developments Adopted in the Year 2009 With Regard to the Broadcasting Landscape 

In so far as broadcasting legislation is concerned, last year has been undoubtedly a fruitful and productive one. A law to amend the Broadcasting Act was enacted to regulate satellite radio and television. A Bill to amend the Broadcasting Act was being discussed at second reading in the House of Representatives prior to the Christmas recess so as to transpose the provisions of the European Union Audiovisual Media Services Directive 2007/65/EC into Maltese law. A third law to amend the Broadcasting Act is in the pipeline proposing the regulation of general interest objectives broadcasting stations and a further liberalisation – though not a complete one – of the media concentration provisions in the Broadcasting Act.  The University of Malta has also given its share to the development of broadcasting law through establishing in 2009 of a new Department within the Faculty of Laws – the Department of Media, Communications and Technology Law. This Department will soon be offering a study-unit in Broadcasting Law which, to-date, has never been systematically studied in the Faculty of Laws.  The broadcasting developments taking place in Malta are regularly chronicled by the Council of Europe’s European Audiovisual Observatory which has published during the last couple of years various snippets on the Maltese audiovisual landscape in order to keep abreast Council of Europe Member States with the fast evolving developments taking place in the broadcasting milieu both in Malta and in other Council of Europe institutions/Member States.  Another development which has to be borne in mind is the establishment by the House of Representatives of a Select Committee to deal with various subjects including that of broadcasting as part of its legal reform remit.[1] But of course praiseworthy as all these initiatives are, there is still much more to be done in this fast evolving branch of the law. 

3.         An Agenda for the Future: A Proposed Plan for Broadcasting in Malta 

Notwithstanding the taking of all these initiatives by Maltese state institutions – Parliament, Government, the University of Malta, etc. – it is necessary to move ahead with time, especially in the media sector which is highly influenced by the communications and IT sectors where progress is not measured in centuries, decades or years but in split seconds. The way forward implies that new issues have to be addressed both at a legislative and policy level. These comprise the following: 

3.1.      The Broadcasting Authority 

The Broadcasting Authority has been moving in the direction where political and industrial controversy are not more the dominant part of its day to day operations. As a matter of fact, political programming organised by the Authority itself is limited to those four to five weeks before a general election, a European Union Parliamentary election, a local council election or a referendum campaign. The last referendum was held in 2003 whilst local council elections will no longer be held annually as has been the practice since the enactment of the Local Councils Act in 1993 but every two, three and subsequently four years. This in view of the amendments made to the Local Councils Act in July 2009. [2] Again, with pluralism in broadcasting and with the two main political parties represented in Parliament owning their stations, the constitutional function of the Broadcasting Authority has concentrated itself much on the public service broadcaster rather than on the political stations. This is not to say that political stations are not bound by the Constitution of Malta and the Broadcasting Act but that, perhaps, the Authority has began to come to grips with the reality which has evolved during the last fifteen years or so where political parties have their own broadcasting media. Naturally, every now and then the Broadcasting Authority is criticised for not treating the public service broadcaster and other commercial non-political stations at a par with political stations. However, everybody seems to forget that when the idea was mooted by government to licence political stations the Authority had forcefully opposed such a move; that it was government who allocated radio frequencies to the two political stations with the Authority disagreeing with such a move; that Parliament introduced that objectionable and unconstitutional proviso to article 13(2) of the Broadcasting Act which political parties have conveniently interpreted that political stations balance out each other, which provision the Authority conveniently – and realistically I would dare to add – applied in its regulation of political stations limitedly during electoral campaigns for general elections, EU Parliamentary Union elections and referenda (but not during local councils elections as the Authority does not issue a directive to regulate broadcasting during local councils’ electoral campaigns). 

3.1.1.   The Membership Selection Process 

According to the Constitution of Malta, the Broadcasting Authority is appointed by the President of Malta on the advice of the Prime Minister after the latter has consulted the Leader of the Opposition. As a matter of practice this has worked out as follows since the late eighties/early nineties. The Prime Minister chooses two representatives; the Leader of the Opposition chooses another two; and the Prime Minister and the Leader of the Opposition consult with regard to the Chairman. If both agree on a suitable candidate, then s/he is appointed Chairman of the Authority; if no agreement is reached, then the Prime Minister may decide to tender his advise to the President of Malta and the latter has to make the appointment. Essentially the President has no say in the matter in terms of the Constitution and thus is bound to take the Prime Minister’s advice. The President might have reservations as to the appointment of the Chairman and/or Members of the Authority. But if the Prime Minister decides to press ahead – as he is fully entitled to do so in terms of the Constitution – the President must comply with the Prime Minister’s advice or, if he is adamant to do so, he is at full liberty to resign from office. The President’s role is insignificant in the whole process. Not only so but the tendency is to choose members according to party lines and a Chairman who is considered to be acceptable to both main political parties represented in Parliament. There have been however instances where the Opposition did not accept the reappointment of a Chairman.[3] In practice this means that the members of the Authority cancel each other out and then it is up to the Chairman to decide the matter at issue: it is he who has real and actual decision making clout and it is not the first time that he has had to exercise his vote in favour of one faction and against another. In such situations, it is doubted whether it is useful to have five members sitting on the Authority when in reality it is only one of them who really has decision making powers in such a scenario. This gives the Chairman a lot of power but a lot of responsibility as well. It is very exceptionally that members depart from the views of the authority proposing their appointment. One notable exception was when Mr. Antoine J. Ellul (who had previously served as Chief Executive of the Broadcasting Authority and who was appointed by the Prime Minister as a Member of the Authority following the resignation of Mr. Lino Mintoff) voted against the Prime Minister’s interests in the case of the MIC spots. Needless to say, Mr. Ellul’s appointment as member of the Broadcasting Authority was not renewed.  The current method of appointment of members of the Authority is not made in the public interest but in the interest of the two political parties in Government. This is totally wrong in a democratic society based on the rule of law which respects the doctrine of the separation of powers. The Broadcasting Authority is not a political partisan institution: it is a Constitutional organ of the State. Like the Public Service Commission, the Electoral Commission, the Employment Commission, the Commission for the Administration of Justice, the Ombudsman and the Auditor General, it is totally independent from the Legislature and the Executive. However, the method of appointment of its members has reduced, not to say nullified, the public interest function of the Authority. To solve this problem is quite obvious. The Prime Minister and the Leader of the Opposition should have a limited not final say in the appointment procedure. This is because they have a conflict of interest: the respective political parties they head both own broadcasting stations (one radio and one television each). So once they have a conflict of interest, they ought to declare it and move away from the current appointment process. But this is not what happens both as a matter of law and as a matter of practice. It reminds me of the 1981 electoral impasse when the Malta Labour Party obtained a majority of members returned to the House of Representatives whilst the Nationalist Party obtained a majority of first count votes. In a democracy where the applicable tenet is vox popoli vox dei, it was obvious that the Nationalist Party should have governed and that the Labour Party should have been in opposition. But the Constitution was cited over and over again to the tenor that it refers to seats not to valid first count votes. It took five years to solve this debacle and it is not know how long it will take to solve the Broadcasting Authority appointment conundrum. It should be the President of Malta who should appoint the Broadcasting Authority, the Electoral Commission, the Employment Commission and the Public Service Commission not on the advise of the Prime Minister after the latter has consulted the Leader of the Opposition but after the President has carried out widespread consultation not only with the Prime Minister, the Leader of the Opposition and the political parties by also with civil society, organised interests and stakeholders. We need to widen the selection process, add in more transparency into it and ensure wider consultation with all stakeholders concerned. The President of Malta can seek the advise of past Presidents of Malta, retired Members of Parliament, the Speaker of the House and retired Speakers, retired Chief Justices, the MCESD, stakeholders (e.g. the Principal Permanent Secretary in the case of the Public Service Commission; the political parties in the case of the Electoral Commission; broadcasting stations, advertising agencies and self-regulatory structures in the case of the Broadcasting Authority, etc.). In addition, once a Council of State has been mooted, the President of Malta may in the future consult this Council as well once established.[4] Again, whosoever is appointed to public office should be held accountable and therefore certain safeguards should be put in place to ensure that such person is not abusing his or her powers. For instance these persons: 

(a)    should be bound by a Code of Ethics. This Code should be adopted by law and be legally binding. Non-compliance with such Code should entail their dismissal from office or other alternative disciplinary sanctions, depending on the circumstances of the case, by the Commission for the Administration of Justice;

(b)   their honorarium should be established by law and not as is the position today it is established by the Prime Minister without the quantum of such honorarium being published in the Government Gazette.[5] Such members should not enjoy any other benefits or perks except than those established by law. The honorarium should be revised annually and published in the Government Gazette in terms of an amendment to that effect to be made to the President of Malta and Other Officers (Salaries) Act.[6] It should be the Public Accounts Committee, following discussions with the Auditor-General, which should establish the said honorarium. It should not be left to the Government of the day or to the public service to establish such honorarium;

(c)    criteria for non-eligibility for appointment should be written in the law (e.g. no person may be appointed a member of the Broadcasting Authority if s/he produces programmes, participates in a programme (regularly or otherwise), writes in newspapers on broadcasting related issues, manages a broadcasting station, etc.;[7] 

(d)   the Broadcasting Authority (like other constitutionally established commissions) needs to be more transparent in its workings: for instance, the Freedom of Information Act does not extend to its constitutional functions; the award, suspension and revocation of broadcasting licences should be more transparent: it should materialise only following a public hearing after the licensee and other interested parties, if any, are heard;

(e)    records which date more than 30 years, even if relating to the constitutional function of the Authority, should be available for public inspection/copying under the Freedom of Information Act.[8] 

3.2.      The Role of the Public Service Broadcaster 

The role of the public service broadcaster is indissolubly linked with the future of political stations in Malta. Political stations will not and can never die a natural death unless and until the public service broadcaster continues to be, actual or perceived, an instrument of Government propaganda. The public broadcasting service has at times been perceived as an instrument of propaganda in the hands of the Government of the day both during colonial times and post-Independence. Obviously both the Government of the day and the public service broadcaster have over time denied this allegation. However, there is no doubt that whoever is in opposition (it need not be one political party) is always accusing the public service broadcaster as being biased against the opposition party/parties. Even if this might not necessarily be true at all times and there have been cases where the Courts/Broadcasting Authority have found in favour of the public broadcaster, there have also been cases where the public broadcasting service was used to push government’s political agenda. Again, in those instances where the public service might not have been intentionally or otherwise favouring the government of the day, the perception of the opposition parties is that they are treated differently from the Government or the political party in government. Hence one has to address not only actual cases of political bias but, and perhaps more importantly, perceived cases of the public service broadcaster’s political bias. This perception has to be addressed at an institutional level. Currently the board of directors of the Public Service Broadcasting Limited and the Editorial Board are appointed by the Minister responsible for culture (who is the Minister responsible for broadcasting). It is the Board of Directors which in turn appoints top management, including the Chief Executive and the Head of News. Indeed, the perception is that all these persons are the Minister’s stooges and puppets. To do away with this perception – which sometimes might also contain elements of veracity as well – a new institutional set up is needed. When I joined the Broadcasting Authority in 1999, the idea which was being mooted at that time by the Authority was to hive-off the news room of PBS Ltd. and assign responsibility therefor to the Broadcasting Authority. Whether such move would have solved the real or perceived political bias problem of the public service broadcaster or perhaps even exacerbated it cannot be ascertained especially in the light of the fact that the way the Broadcasting Authority is appointed leaves much to be desired. Apart from the fact that no public broadcaster worthy of the name can accept such a move not to have its own news room and current affairs programme hived off and not managed by it even though it seems that today with the farming out policy at PBS Ltd. current affairs programmes are, with the exception of Dissett, hived off to independent production houses. As stated, the Broadcasting Authority itself would not be the best institution to guarantee balance and impartiality due to its biased composition and, more so, how can the Broadcasting Authority run a news room and at the same time deliberate upon complaints received against its own news room? This in itself smacks of partiality and bias. The Authority cannot be a regulator and an operator at one and the same time. The solution has to be more radical. Even here the public service broadcaster should not be under the responsibility of a Minister of Government but directly under the Office of the President of Malta. Its Board of Directors and Editorial Board should be appointed in the same way, as above stated, as in the case suggested above for the Broadcasting Authority. 

3.3.      The Future of Political Stations 

Both the Malta Labour Party and the Nationalist Party own a radio and a television station. Alternattiva Demokratika had its own radio station (Capital FM) but sold it. Alternattiva Demokratika applied for a television broadcasting licence with the Broadcasting Authority but never pursued it. Azzjoni Nazzjonali also applied for a television broadcasting licence with the Broadcasting Authority but subsequently gave it up to a commercial company before the application was awarded. Political broadcasting is rampant. The Broadcasting Authority organises its own schemes of election broadcasts. Political party stations have their own dosage of political programmes. Other stations such as Smash TV, Favourite TV and the now defunct Family TV and U TV have or had political content in their programme schedule. Public Broadcasting Services Limited has current affairs programmes such as Dissett, Bondi Plus and Xarabank and, up to some time ago, had Reporter as well. We cannot say that we are not a nation lacking in political programming! This apart from the tendency to introduce politics even in breakfast shows. But once commercial non-political stations and the public service broadcaster do attempt to produce balanced programmes, the same cannot be said with regard to the news bulletins and current affairs programmes produced by political stations. The bias is so evident on these stations that one immediately knows on which station s/he is watching the news bulletin or current affairs programmes. This notwithstanding the Broadcasting Authority’s attempts to curtail as much as possible partisan politics on all broadcasting stations.[9] The solution is obvious: political stations should be closed down. But for all political parties to agree on such a measure this requires at least addressing satisfactorily three fundamental issues: 

(a)    the selection process for appointment of the Broadcasting Authority and of PBS Ltd. structures (Board of Directors, Editorial Board and top and senior management, including the Head of News and the Head of Programmes);

(b)   the actual or perceived bias of the public broadcasting service;

(c)    access to the political media by all political parties and not only by the two main political parties, even though, in recent years, the Broadcasting Authority has allowed limited access to small political parties to airtime on commercial broadcasting stations consisting in a programme of one hour per week (together with a repeat thereof). 

3.3.1.   The Role of Political Parties in a Democracy 

Even if one argues against political parties holding their own broadcasting stations, one must bear in mind the seminal role political parties play in a democratic state and one cannot and should not silence the voice of such parties. Otherwise, this would lead towards a dictatorship. Nonetheless a compromise needs to be achieved which, whilst ensuring that political parties are given the means to air their views, they are prevented from owning broadcasting stations. This is the position in the rest of the world and Malta should be no exception. In this respect the public service broadcaster and the Broadcasting Authority have a seminal role to play to ensure that political parties are given fair and adequate facilities and time – as the Constitution aptly puts it – to ensure that they have the necessary means to convey their thoughts to the public at large. Naturally, at this juncture it is to be asked what alternative/s exist to the current scenario.

Option 1: One alternative would be to establish a political channel, both for radio and television to be operated by the public service broadcaster under the supervision of the Broadcasting Authority as reappointed as aforesaid. The Authority would consult with political parties before drawing up the political station’s programme schedule and it would also allot airtime to the political stations for their own produced broadcasts. Today there are so much production houses that political stations can farm out their own productions unless they want to retain their own broadcasting recording facilities for such purpose without owning broadcasting stations. Not only so, but as part of its public service obligations and in the interests of a pluralist democracy, the public service broadcaster and the Authority should be given the necessary means (human resources, finances, equipment) to operate such a political station and to ensure quality programming. This station could also broadcast live parliamentary debates and other national activities. The Broadcasting Authority already houses a broadcasting studio in its premises from where such programmes can be produced.

Option 2: This option would simply follow the “European” model, that is, state practice in European states in the field of political broadcasting where the broadcasting regulator – the Broadcasting Authority – would continue to organise its own political broadcasting (schemes of political broadcasts throughout the year; local councils elections broadcasts; European Union Parliamentary elections broadcasts; referenda broadcasts; general elections broadcasts) without the existence of political stations.

Whichever option is adopted, it is of essence that all Malta will have trust in the impartiality, balance and fairness of the public service broadcaster. If this will not be the case – and past history has shown to what extremes the public service broadcaster can and did stoop both during colonial times and worst still under both Nationalist and Labourite administrations – it would be futile to ask political parties to give up their own stations if they will not be one hundred per cent convinced that the public service broadcaster will abide scrupulously and impeccably by its constitutional and legal obligations of impartiality, balance and fairness.

 3.4.            Convergence between the Broadcasting Authority and the Malta Communications Authority 

If the Select Committee of the House of Representatives when discussing broadcasting elects to endorse this proposal, then the composition of the new authority which is to be created from the merger of the Broadcasting Authority and the Malta Communications Authority will have to have a wider representation than at present. Basically two options present themselves at this stage:

Option 1: Keep both Authorities separate and distinct from each other. In this case the question which will arise is how will the Broadcasting Authority be constituted? I have already answered this question above.

Option 2: Establish a Convergent Authority. In this case the composition of the board of the convergent authority has to have a wider representation. The Convergent Authority can have diverse directorates dealing with IT, communications and broadcasting unless, of course, the functions of Press Registrar are assigned thereto as well.

Option 2 is the preferred option because it represents the future, if not the present. Option 1 is a relic of the past which does not take on board the massive developments which have taken place in the ICT sector to such an extent that through the merger of the various media, we are moving in the direction of media convergence: you can see a television station or hear a radio station on your tv or radio set, on your computer, on your laptop, on your ipod, on the bus, in a taxi and even in a subway and an underground. The more time passes the more do the media tend to integrate themselves to such an extent that the medium as such becomes irrelevant to the consumer. Malta should look to the future-present and not to the present-past.

 3.5.      Code of Ethics  

Irrespective of which option is adopted, the point remains that a Code of Ethics should be adopted which is legally binding upon the Chairman and members of the Broadcasting Authority. As the Broadcasting Act stands today, the law provides that the Chairman and Members of the Authority cannot participate on a regular basis in broadcasting. However, it is to be borne in mind that the Authority not only licences broadcasting stations but it also disciplines them, thereby having an adjudicative role (article 41 of the Broadcasting Act). When inflicting administrative sanctions, the Authority is more akin to a judicial body than to an administrative organ. The Broadcasting Act itself requires the Authority, when hearing charges issued by the Chief Executive against a station, to grant broadcasting stations a fair hearing. Hence, it does not make any sense from the human rights point of view to permit the Chairman and Members of the Authority to participate in programmes when they can be called upon to judge a broadcasting station following a charge by the Chief Executive against the station on whose programmes the Chairman or Members of the Authority participate. Moreover, even during the processing of a broadcasting licence application, the requirements of transparency and accountability are not met when the Chairman and Member are perceived to be ‘close’ to any particular station. In the interests of impartiality, objectivity, fairness, transparency and accountability, the Chairman and Members should be prohibited from involving themselves in the media (including the print and electronic media) unless such intervention is required in the interests of the Broadcasting Authority itself in order to explain certain policy decisions or to elucidate on Authority related business after such involvement is approved by the Authority’s Chairman.

A similar Code of Ethics should apply to the Authority’s staff. Every now and then the Authority is called upon to adjudicate complaints received from political parties, trade unions, civil society, etc. For the Authority to be seen and perceived to be independent of Government, political parties, trade unions, civil society, etc. not only should the Chairman, Members and Chief Executive refrain from taking active part in political activities but such a requirement should extend to the Authority’s staff for it is these people who are advising the Authority on such complaints by drawing up reports, etc. on the subject-matter of those complaints.

 3.6.      A reappraisal of Community Radio Broadcasting 

There is no doubt that the provisions of the Broadcasting Act on community radio stations have been a success and this goes to show how wise the decision was way back in 1991 to provide for community radio broadcasting when introducing pluralism in the broadcasting media. Currently there are around 60 community radio stations, circa half of which broadcast on a permanent basis with the remaining community stations being on air for less than a month. Perhaps the time has come to carry out a nationwide consultation with the operators of community radio stations to establish how the legal provisions and administrative practices which have developed since 1991 can be improved to better assist the voluntary sector which makes use of such stations.

 3.7.      Better regulation of the Broadcasting Sector 

The Broadcasting Act needs to be revisited from a better regulation perspective to ensure that the procedures contained therein are simplified and made more user friendly whilst the application procedure for a broadcasting licence is rendered less cumbersome and, where possible, standardized. It should be considered whether instead of resorting to the requirement of filling and submitting an application form for a broadcasting service, a new procedure is introduced – as is the case in the communications sector – whereby an applicant for a broadcasting licence notifies the Authority of his intention to broadcast instead of having to fill in a very detailed form. Broadcasting as an expression of freedom of expression should be made easier to attain. A pilot project could first be introduced with regard to community radio stations and if it bears fruit it could be extended first to radio and then to television services.

 4.            Conclusion 

This paper has not attempted to address all the plurality of myriad issues which will bring about a revamp of the Broadcasting Law: on the contrary, it has focused on what can be considered to be the most impelling issues which the Legislator ought to discuss with a view to legislative reform. What is vital in this sector of the Law is that constitutional principles – such as the doctrines of the Rule of Law and of the Separation of Powers – be extended to this branch of the Law in order to ensure more transparency, accountability, fairness, correct and ethical behaviour, impartiality and balance in the broadcasting media, whether public or private, commercial or political. One expects a quantum leap forward in the broadcasting sector intended to enshrine in our law a more updated legal framework which respects freedom of expression in a democratic society under the rule of law and ensures that viewers/listeners/consumers of the broadcasting media are given what they deserve: quality programmes which respect their intelligence. 

2^nd January 2010.