The Minister is quite right in saying that the act of advertising by means of a broadcast from a prohibited station is covered under section 6 (3) (e) but I am not so sure that the matter as dealt with in the section is very effective. Supposing somebody were to establish that for the purpose of pretending that they had a big listening audience for the advertising of products and they are advertising with the consent and the request of the advertisers. That clearly is not an offence. That is the type of defence that may be put up. What I am concerned about is the actual payment. It is clear that unless you stop payment to these pirate stations, you are not effectively getting at the whole operation. You can have people advertising a variety of products for the purposes of pretending they are doing a business and they can continue a business for some time on that basis. I would like to see us getting nearer to getting people to pay for advertising on this pirate business. The Minister thinks it is covered on that basis. I am not at all sure that it is.
Broadcasting (Offences) Bill, 1967: Committee and Final Stages.
There is a difficulty in regard to this because it is very difficult to prove that an Irish-sponsored firm broadcasting from a pirate station had actually done so because a written record might not be readily available. The position is different if the onus is put on the firm to show they have not arranged or paid for the broadcast. I think that is what the Bill covers. They have to show and prove they have not arranged or paid for the broadcast. In other words, in the case of the makers of some well-known commodity, where it was quite clearly advertised in the pirate station they would have to prove that they had arranged for and paid for it. In the ordinary way in this country, it would be impossible for people to get away with the position if we make them show that they have arranged for the broadcast or payment thereof.
What the Minister says is correct in relation to certain acts provided in subsection (3) (a) but if the Minister looks at subsection (4) he will not find it is to be presumed until the contrary is proved that the particular firm whose broadcast is advertised is, in fact, advertised by the pirate station. I should have thought if one wanted to put teeth into the section one would do it in the way it is done in the Transport Acts and other legislation of that kind. It is not done in subsection (4) of section 6. As far as I can see, the onus is not put on the person charged.
It refers to advertisements. It says "unless he proves that it was not so supplied or given, be deemed thereby to have advertised". The Senator may also note sections 2 (1) and 3 (1) relate to what he has mentioned.
Perhaps it does but it is not entirely clear.
Subsection (5) of section 6 says:
For the purposes of this section advertising by means of a broadcast shall be deemed to take place as well wherever the broadcast is received as where it is made.
What does that mean?
This is the question where broadcast advertising is deemed to take place at the point where it is received as well as where it is made. Advertising by means of a broadcast is an offence under paragraph (e) of this section if it is done in any of the places set out in subsection (1). If somebody advertises by means of a broadcast where does he advertise? Advertising means bringing something to public notice. If a manufacturer places an advertisement with one of the pirate stations offshore, he intends that the merits of his products shall be advertised in Ireland. The effect of the subsection is that the manufacturer shall not be able to escape conviction for advertising by pleading that he is a citizen of a foreign country and that he did the advertising on the high seas. He is advertising in this country and he is caught by the Bill.
Queston put and agreed to
SECTION 7.
If I were drafting a summons against a proprietor of a pirate station and were looking at section 7, I would wonder, if this were a summary charge I was bringing, to what district court area I should bring it. I presume the offence would refer to a district court area. There is nothing in this which says that the offence will be deemed to be committed anywhere and the summary charge may be brought in any district court area within the State. Normally the proceedings are taken where the offence is committed in that district court area or in the district court where the defendant resides unless the offence is regarded as being everywhere in the country. The Minister is really put into some difficulty unless the offence is deemed to be committed within the jurisdiction.
Obviously any prosecution taken in the courts is taken at the instance of the Attorney General and it would be regarded as merely for him to be able to take cases in any courts.
That may be so, but at the same time the district court derives jurisdiction from the fact that a person is either arrested in the district court area where the offence was committed or he resides in the jurisdiction where the offence has been committed. Unless some provision provides that an offence is committed all over the country, once the broadcast is received in any part of the country, it will be very difficult to get a conviction in the district court. The same applies in larger areas to the circuit court. This is something which should be clear in the Bill. We will find it very difficult, having caught the criminal, to get any court where we can convict him.
I understand subsection (3) of section 7 is inserted precisely so that there may be no difficulty in some cases of ascertaining where the offence took place.