I welcome the Minister for Communications, Energy and Natural Resources, Deputy Eamon Ryan, and his officials to the meeting.
I welcome the Minister for Communications, Energy and Natural Resources, Deputy Eamon Ryan, and his officials to the meeting.
I move amendment No. 55:
In page 44, subsection (2) (f), lines 37 and 38, to delete all words from and including “that” in line 37 down to and including “particular,” in line 38 and substitute the following:
"that in respect of programme material broadcast by a broadcaster that audiences are protected from harmful or offensive material, in particular, that programme material".
This amendment was already discussed with amendment No. 48.
Amendments Nos. 61 and 63 are related and may be discussed with amendment No. 56.
I move amendment No. 56:
In page 44, subsection (2)(f)(ii), line 45, after “children” to insert the following:
"and the impact of such programming on members of the audience for such material".
Deputy McManus is not present and will probably reintroduce her amendments on Report Stage. We discussed these amendments yesterday. They concern religious advertising. I said I would withdraw these amendments with a view to returning an improved amendment on this issue on Report Stage. We should not open the debate again on these unless the Minister wishes to do so.
I move amendment No. 57:
In page 45, subsection (2)(j), line 16, to delete “IIB,”.
This is a drafting amendment already discussed with amendment No. 2.
I move amendment No. 59:
In page 45, subsection (3)(e), line 33, to delete “services” and substitute “a broadcasting service”.
I move amendment No. 60:
In page 45, subsection (3)(e), line 35, to delete “a service” and substitute “the service”.
This is a drafting amendment already discussed with amendment No. 2.
Amendment No. 61 was already discussed with——
Amendment No. 61 has not been discussed. This amendment does not relate to the religious advertising issue. Amendments Nos. 58 and 62 were grouped together but amendments Nos. 61 and 63 have not been discussed.
They were grouped with Deputy McManus's amendments, but the Deputy should go ahead.
I move amendment No. 61:
In page 45, subsection (4), line 45, after "contain" to insert "alcohol,".
I apologise if I missed the boat on that. However, we have not discussed this issue and it is important for us. Perhaps I could speak to amendments Nos. 61 and 63 together because they are connected.
I agree with what the Minister proposes in respect of unhealthy and junk foods. He is trying to protect children from aggressive and irresponsible advertising. I accept that we have come a long way in terms of codes of advertising for children. However, if we are to give the authority the power to prohibit certain forms of children's advertising of junk foods at different times of the day and have those codes reviewed and debated by this committee, the same should apply in respect of alcohol advertising. I do not see why there should be a distinction between irresponsible food advertising and irresponsible drink advertising and therefore I am trying to place them in the same category.
Fine Gael does not propose that we enshrine in legislation a watershed time before which junk food advertising and alcohol advertising should be banned entirely. In time, that may well be the most appropriate thing to do, by means of a code. However, the authority should have the power to introduce a ban or a prohibition on certain forms of advertising if they are irresponsible in terms of the audience they target, the times of broadcast and the vulnerability of certain sections of the potential audience. If this makes sense for junk food advertising it should make sense for alcohol advertising.
We currently have a voluntary code of conduct which the industry abides by in respect of alcohol advertising. This has had positive effects. The industry will outline very forcefully all the measures it is putting in place to promote responsible drinking and to ensure that its members do not advertise in an irresponsible way. It claims to go even further to offset any suggestion of a prohibition on alcohol advertising at certain times of the day. It is the same with the food industry. Our job as legislators is not to prescribe the exact solution in legislation but to give powers to the authority to take the nuclear option, if one wishes to call it that, if it believes that is the only way to protect a certain section of the audience at certain times of the day. Under the broadcasting code, the authority should have available to it a series of other measures it could implement in the area of alcohol and junk food advertising. This would allow it to hold a stick over the alcohol and food industries in the sense that it could introduce an advertising prohibition in the event that the industry failed to act responsibly.
Amendment No. 63 would require the authority to appear before the Oireachtas joint committee at least once per annum to report on the effectiveness of established broadcasting codes, outline proposed amendments thereto and indicate whether any new codes may be under consideration. It also includes a safeguard to ensure the authority does not over-react, stipulating that the authority obtain approval from the Minister for amendments to existing codes or to introduce new codes. While I concur with the Minister's views on the issue of junk foods, I hope he will agree to apply the same rationale to alcohol.
The amendment relates to the children's advertising code. Advertising of alcohol to children is precluded in so far as the existing general advertising code precludes targeting alcohol advertisements at children. This code has been strengthened in the areas of advertisements aimed at the adult population. Whereas previously an advertisement aimed at the adult population was considered to be where the adult profile was 67% of viewers, this figure has been increased to 75%. Alcohol advertising during children's programming is prohibited and profiling is used for evening programming to test adult viewership. The prohibition on advertising aimed at children is strictly enforced.
I am cognisant that the Department of Health and Children has the lead role on this issue. My Department also worked with the Department of Justice, Equality and Law Reform on the many initiatives introduced and this work continues to evolve. My party has taken a strong view on this matter and supports applying further restrictions to the advertising codes on alcohol marketing and sponsorship. I am reluctant to be more specific in the legislation and interfere, as it were, in the approach being taken by the Department of Health and Children. At the same time, I am confident the codes we have in place can incorporate the recommendations from the Departments of Health and Children and Justice, Equality and Law Reform. As I indicated, alcohol advertising aimed at children is prohibited.
I am not sure what the Minister means by his statement that alcohol advertising aimed at children is prohibited given that children watch Champions League soccer matches which are sponsored by alcohol companies. These firms also sponsor films. During yesterday's proceedings, we agreed that a child is a person under 18 years. Children aged 16 and 17 years watch television until midnight. I fail to understand how one differentiates between the times of day when children are and are not watching television. This is the reason we are not prescribing a 9 p.m. or 10 p.m. watershed but asking the authority to improve its advertising codes each year in response to developments in the marketplace.
The best outcome would be if the authority considered the industry's approach to be responsible and satisfactory as that would also address the issue of foreign companies broadcasting to Ireland. Under a voluntary code, the industry will not advertise at inappropriate times of day. While a prohibition is the mechanism of last resort, we should give the authority this weapon which it could use if it finds itself unable to bring the industry with it. If such a mechanism is available, the junk food and alcohol industries will take the authority and codes much more seriously.
I do not accept that the Department of Health and Children can differentiate between the junk food and alcohol industries given that it is equally concerned about the effects of alcohol and junk food on adults and children. Where is the distinction?
Recent sports events where sponsorship acted as a form of advertising come to mind. For example, Guinness was remarkably prominent in recent rugby matches, with all sorts of images advertising alcohol products appearing on the pitch during television broadcasts of games. Advertisements also featured on the rugby ball shown on advertising hoardings.
Deputy Coveney is correct that children under the age of 18 years will watch rugby, Champions League and hurling matches as well as other sporting events. However, the children's advertising code relates to programming aimed at children, for which certain definitions based on audience percentages are used. The children's advertising code would not be the vehicle used to move beyond the current position and ban all alcohol advertising or sponsorship. Support for a general prohibition is a credible position, the validity of which I do not dispute, but it requires a Government decision. I have to work with other Departments to make that decision and we have not yet reached that position. What is being developed on a cross-departmental basis is a series of measures to further tighten and refine existing codes to try to protect the nation's health from excessive alcohol advertising.
A Government or cross-departmental decision to completely ban alcohol advertising and sponsorship has not been taken. We may move towards adopting such an approach and the development of codes does not preclude us from doing so. However, in the absence of a decision, I do not propose to legislate as if such a decision had been taken.
Perhaps I have proposed, in amendment No. 61, to insert the word "alcohol" in the wrong place. The amendment proposes to insert the word before the words "fat, trans-fatty acids, salts or sugars". These are essentially junk foods which relate specifically to the general public health interests of children. Perhaps the word "alcohol" should be inserted in section 42(2), the general subsection on the broadcasting codes, which sets out in paragraphs (a) to(j)what the broadcasting codes “shall provide”. Perhaps I should propose adding a new subsection requiring that a code should be improved each year by the authority in the area of alcohol advertising. Provision is made in this regard for a series of other matters and the issue of religious advertising may also be added.
It is not sufficient to rely purely on a voluntary code or arrangement with the drinks industry. I do not suggest we take a heavy-handed approach towards alcohol advertising. While that may be appropriate and should be discussed, it is not what I am promoting in these amendments, which would require the broadcasting authority to consider this issue, produce a code and appear before the Oireachtas joint committee each year to allow members to discuss issues with it. The broadcasting authority should be obliged to consider this issue, produce a code for it that would give it the powers to come before an Oireachtas committee each year, where we could have a discussion with the regulator on what is and what is not appropriate — and listen to the drinks industry viewpoint in terms of what it is willing to do and has been doing on a voluntary basis. At the moment it is a one-sided argument. We hear the drinks industry argument and there is a voluntary code it abides by. To be fair, there has been significant progress, but there is nothing on the regulating side that is enshrined in legislation, of which I am aware. If we are to do it for children's advertising, potentially religious advertising and for political broadcasts as well as sensitive material in terms of violence and sexual conduct, then the alcohol problem in Ireland is sufficiently significant to justify some mention in legislation of parameters for a code of conduct around alcohol advertising on television. It would be useful to explore that. It does not even have to be in the same paragraph in the junk food, fatty acids or unhealthy food section. Perhaps I should reintroduce this on Report Stage, but I should like to get an indication from the Minister as to whether he will look at it, if I do.
The Broadcasting Commission of Ireland's current general advertising code includes provisions on alcohol, for example that stronger alcohol such as vodka, whiskey or any of the other spirits may not be advertised — and such advertising cannot be aimed at children. There are several other provisions, too, but I do not have the code with me now. However, in the general advertising code there is a prohibition on certain alcohol advertising. As Deputy Coveney says, industry codes are worked out in conjunction with the Department of Health and Children and the Department of Justice, Equality and Law Reform. As I understand it, there is nothing to preclude the extension of that general code to encompass further restrictions, right down to prohibition. However, a firm decision on that is required. The Deputy indicates that he will not go that far yet in terms of calling for a complete ban on the advertising of alcohol, although that is a valid argument. In the absence of such a decision, however, I do not believe we should insert a ban in the code.
I am not asking for a ban. Perhaps I have not made myself clear. Section 42, which is entitled "Broadcasting codes", begins:
The Authority shall prepare, and from time to time as occasion requires, revise, in accordance with this section, a code or codes governing standards and practice...to be observed by broadcasters.
Then it says, "Broadcasting codes shall provide", followed by a whole series of things they will provide for, but alcohol is not mentioned. Protecting children, in terms of their public health interests is mentioned and it deals with what needs to be done with party political broadcasts as well as sexual conduct and sensitivity towards the convictions or feelings of the audience and due regard for the impact of programming on the physical, mental and moral development of children and so on. All these things are required to be taken into account, so is it not appropriate to say that "broadcasting codes shall provide for" and provide for a responsible approach towards the advertising of alcohol in one of those provisions? I am not asking the Minister to be prescriptive in terms of what they do, but it would send an important signal to the authority and the drinks industry to the effect that we are taking drinks advertising seriously and it needs to be done responsibly, or else the authority will have to introduce codes that will enforce that. As it happens, the industry is moving in the right direction at the moment, but I want to see that continue, by having a regulator of advertising in broadcasting that has a stick if he or she needs it, to continue to push it in the right direction in terms of responsible advertising. I am not asking for a prescriptive approach, a ban or anything like that. Let us give them the artillery to encourage the industry to continue to move in the right direction. That is all I am saying.
I support Deputy Coveney in what he says. As I understand it what he is arguing for is essentially an enabling provision that ensures the issue of alcohol advertising is included. It seems somewhat anomalous that, on the one hand, the Bill deals with breakfast cereals for children, while not addressing what is really a much bigger issue in many ways, in terms of public health. Progress has been made, and nobody should take away from that. However, it is part and parcel of the responsibility of the authority, I would have thought, in terms of codes of practice — and perhaps, beyond codes of practice. Perhaps the word "alcohol" is not inserted in the right place. Deputy Coveney might be hung up on that, but I certainly would not be. However, to exclude it altogether seems to me to be anomalous. Also, it would be a failure to recognise the importance of the issue.
We have a binge drinking culture. It has not gone away, although it has ameliorated somewhat. However, it is an enormous public health issue and we will pay a high price, particularly for young people's health as a result of alcohol abuse. It would be better to have an enabling provision, at least, to ensure the matter is not excluded or ignored — and I support Deputy Coveney in ensuring that might happen.
I will come back to that on Report Stage. Paragraph 8.1.11 of the current general advertising code states that: "All commercial communications for alcoholic drinks shall comply with the net relevant voluntary codes of practice for alcohol radio and television advertising and sponsorship recognised by the Department of Health and Children." That is why I referred to that and the current code says any broadcasting advertising has to comply, so there is a restriction. The appropriate lead is being given, but I am quite happy to consider the situation. Let us look at the wording to see whether we need to refer explicitly to that. Section 42(h) refers to “...protect the interests of the audience”, and if that needs to be further defined around protecting the health interests or with regard to alcohol advertising, we might have a look at it and come back to it on Report Stage.
On the second issue, on mandating a meeting with the committee each year, provision is made in the Bill for the committee to call in the new authority at any stage. I should be very reluctant to, as it were, straitjacket a committee in terms of having to have annual meetings on specific issues. As members are aware, the committee's timetable can be incredibly busy and difficult. While it is good in principle to do that, it would not be right to legislate for this eventuality. The committee has all the powers it needs to bring in an authority to discuss any issue. There are now so many regulatory functions that if we were to mandate such annual meetings on a number of different issues, the committee's entire diary for the year would be quickly filled, which would make it difficult for it to do its work effectively. Nonetheless, I see where this is coming from. I would prefer to leave the powers as they are, with the committee deciding to bring someone in rather than having mandatory meetings.
On the first issue, I accept what the Minister says in terms of the current position on advertising standards and the voluntary code. However, this is new legislation and a new framework is being put in place. If it is not to be provided for in section 42(2) then it should be in 42(3), where it says, "In preparing or revising a broadcasting code, the Authority shall have regard to each of the following matters——". Then it indicates six different areas to which the authority must have regard.
We have a problem with alcohol in Ireland. The Minister recognises that and spoke about it at length when he was in Opposition. This legislation is an opportunity for us to put down a marker for the industry and say that we recognise progress is being made on a voluntary code but that if it starts to diminish or the industry puts the engine in reverse in its approach and direction on responsible advertising, there are legal powers which allow the broadcasting authority to introduce new codes or develop tougher codes on alcohol advertising. We need to protect young people in particular, and also the general population, against an enormous marketing industry for alcohol products that many other countries do not have in the same way we do in this country.
In France, I understand that all advertising of alcohol on television is banned and it is one of the largest wine producers in the world. We can drink responsibly. I am not proposing a prescriptive solution for problems regarding the advertising of alcohol but we should put a signal in this legislation for the regulator and the industry.
Amendment No. 63 contains an important issue for broadcasting. It is not unreasonable to require the Oireachtas committee to consider broadcasting codes once a year and to bring in the authority. Does the Bill require the authority to put a report before the committee on broadcasting codes? I wanted to require that the committee and the regulator would meet once a year in open session because a debate and discussion on this issue is then forced on an annual basis. We monitor the progress on advertising of junk food, alcohol, religion and any other areas that require a policy debate each year.
The Oireachtas committee would not direct the regulator to behave in a certain way. One of the key roles in regulation is the quality of programming and advertising, and there are codes in a range of areas now. Policymakers need to be forced to engage in that to ensure advertising and broadcasting codes reflect the views and concerns of the public. This is not unreasonable. The second part of amendment No. 63 states: "The Authority shall be required to obtain approval from the Minister for amendments to existing codes and for the introduction of new codes." Perhaps it should not require the approval of the Minister to amend an existing code but if it were to introduce a new code in any of the controversial areas I mentioned, there should be some political responsibility attached to it. The Minister may wish to make some comments and they may influence my decision on whether I withdraw the amendment.
We will have to consider the first one. On the second one we will have to agree to differ on the specific provision for having a mandatory meeting on the codes. It is a requirement that the codes are laid before the Houses of the Oireachtas. There is a requirement that they be made available through the revision of the current children's code. The Oireachtas committee members are given notice of and full access to the revisions as they occur.
One of the new provisions that will be brought with the new authority is that the committee will be entitled to bring in the chairperson as well as the chief executive officer, so there is a strengthening of the provisions. The outgoing chairman of the Broadcasting Commission of Ireland was available on any occasion he was asked to attend a committee meeting. The provisions in place are right.
The amendment tabled by Deputy Coveney reinforces what exists in practice. I can see a certain amount of sense in that and we can examine it. Regarding the second part of the amendment, I believe the provisions in the Bill are sufficient.
How stands the amendment?
I will withdraw it and introduce an improved amendment on Report Stage.
I move amendment No. 62:
In page 45, between lines 45 and 46, to insert the following subsection:
"(5) a broadcasting code prepared by the Authority undersubsection (2)(k) may prohibit advertising in a broadcasting service of religious advertising considered by the Authority to be intolerant of diversity or divisive in its content or message indeed the Authority shall reserve the right to prohibit all forms of religious advertising, as was the case prior to the Broadcasting Act 2008 should the Authority deem it necessary to introduce a new code to do so.”
This relates to the issue of religious advertising and I am withdrawing it at this point.
I move amendment No. 63:
In page 46, between lines 14 and 15, to insert the following subsection:
"(10) The Authority shall appear before the Joint Oireachtas Committee at least once every year to report on the effectiveness of the Broadcasting Codes that are in existence, to outline the proposed amendments to establishing codes and to outline the introduction of any new codes that may be under consideration.
(11) The Authority shall be required to obtain approval from the Minister for amendments to existing codes and for the introduction of new codes."
I am pressing this amendment.
I move amendment No. 64:
In page 46, subsection (1), line 16, to delete "make" and substitute the following:
"prepare, and from time to time as occasion requires, revise".
I move amendment No. 65:
In page 47, subsection (4), line 17, to delete "IIB,".
I move amendment No. 66:
In page 47, subsection (1), line 40, after "the" to insert "broadcasting".
I move amendment No. 67:
In page 47, subsection (1), line 43, after "the" to insert "broadcasting".
I move amendment No. 68:
In page 48, before section 46, to insert the following new section:
"46.—(1) In this section "self-regulatory system" means a system whereby the members of a group of persons with a shared interest voluntarily adhere to rules or code of conduct established by that group.
(2) The Authority 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—
(a) the preparation by that person or those persons of standards, or
(b) the establishment and administration by that person or those persons of a self-regulatory system,
in respect of broadcasting content or related electronic media.".
The Oireachtas will be aware the new audio-visual media services directive envisages that member states should, in accordance with their different legal traditions, recognise the role played by effective self-regulation as a complement to legislative and administrative mechanisms and its useful contribution to the achievement of the objectives of the audio-visual media services directive. This amendment has been drafted to address this transposition requirement.
I am conscious of the role that self regulation and self-regulatory bodies, such as the Advertising Standards Authority of Ireland, have and can play in future to complement the legislative system we have put in place in, especially in addressing the challenges posed by new media and, in particular, non-linear media services. We have regulatory powers in Ireland for broadcasters located within the State, but much of the advertising broadcast which is inserted into programmes comes from outside the State. Self-regulatory systems can play a useful role in ensuring the advertisers who place the advertising in such media have a code of conduct that they apply themselves.
We want to encourage the development of new and non-linear media on the Internet. The advertisers who will place that may not be regulated by the same provisions that apply to the broadcasters under the provisions of this Bill but they could have, and work within, a code that would be applied on a self-regulated basis by bodies such as the Advertising Standards Authority of Ireland.
The amendment recognises that while we are establishing a complex, effective and far-reaching regime of regulation, especially for advertising, self regulation can play a beneficial role, particularly in new media or media outside the jurisdiction of the State. This amendment seeks to support that and to enable the authority to co-operate and engage with such self-regulatory bodies or groups in the development of codes and standards and in the establishment of a self-regulatory system.
I had a large question mark next to section 46 as it was worded formerly. This amendment gives more clarity to the section and is an improvement on it. I want it to be clear what we are talking about here. Are we saying this section will allow the authority to be proactive and go, for example, to Sky Ireland or Sky's operations that target Ireland and try to agree on a voluntary code that will apply for the Irish audience? I understand this sort of thing happens already on a voluntary basis and that Sky abides by our advertising standards, even though it is not legally required to do so. Are we enabling the authority to be proactive and talk to broadcasters or multimedia operators that operate from outside the State or who operate in Ireland but are not covered by the regulations that apply in the Bill? Will the authority try to create voluntary codes of behaviour in these areas? Is that a correct summation?
It is a step further than that. We have self-regulatory bodies, such as the Advertising Standards Authority of Ireland, that are made up of members who are advertisers and advertising companies and companies that are engaged in commercial activity. They set their own codes. This recognises that the new broadcasting authority should work with such groups and institutions to help them devise their codes. It should co-ordinate and co-operate in that work, which is effective and sometimes relates to advertising where we do not have much jurisdiction, such as that on the Internet or of broadcasters outside the State. This section recognises the existence of such authorities, their continuing importance and also empowers the new authority to work with such regulators as is encouraged within the audio-visual media services directive. Therefore, it is not for the authority to go directly and liaise with broadcasters outside the jurisdiction, but to support those self-regulatory authorities representing the commercial interests engaged in advertising to be able to work effectively. Nobody would challenge the right of the broadcasting authorities to work with those bodies, be they here or elsewhere, or with bodies outside this jurisdiction, be they Ofcom or the satellite broadcasters.
Can I take it that it is not a proactive role that is envisaged, but that the section simply enables the body, if an approach is made, to co-operate, or does the Minister see it as enabling the authority to go out and try to ensure there is some code of practice in those areas operated by other organisations?
It is an enabling provision to encourage the authority to work with other bodies that have an interest in the area. It also recognises that those bodies have an important role to play.
Amendments Nos. 69 and 70 to 74, inclusive, are related and may be discussed together.
I move amendment No. 69:
In page 48, subsection (1), line 36, to delete "on" and substitute "including".
This is just a small provision, but it provides for people to be able to make complaints. Obviously, we do not condone frivolous complaints. The Bill is quite prescriptive with regard to what people can complain about and it would be a pity if we did not allow some flexibility as we cannot always foresee where complaints may arise. It would be more appropriate, rather than saying people can only complain on these specific grounds, that we say that including these grounds, a complaint can be made.
Again, this amendment brings us back to the consideration of balancing competing interests. It is right for us to introduce new legislative measures that allow people the right of reply and to bring complaints, initially to the broadcaster, but also, with the backup of the compliance committee, to allow for redress in the event of someone having been harmed. There is a balance to be struck between allowing that right and facility and at the same time encumbering the broadcasters with such a level of complaints or redress procedures that it inhibits them in their day-to-day activity.
I believe the balance is correct in this section. I am concerned that accepting the Deputy's amendment would open up a too wide stream of complaints or in a manner that would mean the section could not function effectively. We have the balance right in terms of restricting the grounds or reasons for complaint to where there is genuine or personal offence or harm caused. Therefore, the amendment, although small in wording, would have the effect of undermining the balance we have struck. Therefore, I do not want to accept it.
I would argue with the Minister on that point. The section already has a safeguard in it. It mentions dealing with a complaint which "in the opinion of the broadcaster, has been made in good faith and is not of a frivolous or vexatious nature". That is clear-cut and I cannot see how anybody in court could misunderstand what it means.
The Minister has set out grounds for complaint and this is welcome. However, all that is being asked is that the broadcaster should give due and adequate consideration to a complaint. That is not a major undertaking. If somebody goes to the trouble of making a complaint, the complaint will likely not be of a vexatious nature. However, if it is, there is a provision in the Bill to deal with it.
We are talking about a rich and complex phenomenon that is broadcasting, which has an impact and influence in all kinds of ways. It can also harm or offend in various ways. There is nothing more frustrating than for somebody to complain and find that in the small print their complaint does not fit the category and, therefore, they are powerless. We see this happen all the time with the small print in insurance contracts or when people buy something. This is the small print in terms of a complaints procedure. In other words, it is: "Thanks for your complaint, but you don't fit the criteria or tick any boxes, so goodbye." This is unnecessarily restrictive.
The safeguards are in the section. If the Minister cannot accept my amendment, I will withdraw it now and reintroduce it on Report Stage. I feel we are being unnecessarily defensive here.
This is complex in legislative termsbecause even such a small change as changing from a complaint “on” one of the grounds specified in section 48(1) to “including” means it allows a range of other grounds. Take, for example, section 48(1)(a). This relates to:
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 ofsection 39(1)(a)and (b),
This is where the trail gets complex. For example, section 39(1)(a) states the broadcaster shall ensure any “news broadcast by the broadcaster is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s own views”. While these provisions are not highly restrictive, it is appropriate to concentrate on complaints in this area, particularly when they are made to the broadcaster. There are separate mechanisms, whereby complaints can be made directly to the compliance committee which is allowed to decide whether they are appropriate. However, this section pertains to complaints made to broadcasters and I wish to avoid tying up the broadcasting system in a complaints procedure that would be excessively cumbersome, elaborate or wide. The use of the phrase “including” would mean that one would include these very wide provisions and, by inference, any other issue. There is a danger that this would be too wide. However, there are mechanisms for someone with a complaint to make it directly to the compliance committee which is separate from the broadcaster.
I move amendment No. 70:
In page 50, subsection (4), line 20, to delete "not exceeding 21 days".
I move amendment No. 71:
In page 50, subsection (5), line 34, to delete "not exceeding 21 days".
I move amendment No. 72:
In page 51, subsection (6), line 1, to delete "not exceeding 21 days".
I seek clarity on amendments Nos. 70 to 72, inclusive. Is it proposed to put time limits on the period in which people can make a complaint?
I will explain my reason for proposing amendments Nos. 70 to 74, inclusive, as I did not do so during the block discussion on Deputy McManus's amendment. They arise from discussions with the Broadcasting Complaints Commission about the practical implementation of the redress mechanisms proposed in Part 4 of the Bill. Amendments Nos. 70 to 72, inclusive, allow the compliance committee greater discretion regarding how much time they afford a broadcaster, employee of the broadcaster, independent producer or advertiser to comment on a complaint made. Amendment No. 73 allows the compliance committee greater discretion regarding the timetable for making a decision on a request for a right of reply but outlines an explicit target of dealing with requests for a right of reply within 21 days. Amendment No. 74 clarifies that the list of grounds upon which the compliance committee may refuse a request for a right of reply as outlined in section 49(21) is not exhaustive.
The amendments recognise, on the advice of the Broadcasting Complaints Commission which has some expertise in this area, that for a variety of reasons one sometimes may have a process that requires slightly more time than that provided for in the first draft of the Bill. They recognise that the process may work more effectively by having a certain degree of flexibility and by not being overly prescriptive about the list of grounds on which the compliance committee may refuse a request. It may be that I have not considered all possible examples in which a request may be refused by the compliance committee and this is intended to give it a certain flexibility in that regard.
I like the three week period, as it forces the process to move forward. However, I presume the Minister received good advice on the reason the period must be longer than this. Is it correct that there no longer will be an upper time limit? Section 48(5) states: "...the Compliance Committee shall, having considered the reasons so specified, afford to the person 7 days or such further period not exceeding 21 days as the Committee allows to comment on the complaint". While I will accept the advice received by the Minister, I do not like the idea of not putting time limits on processes such as this, particularly in respect of complaints, as matters can be allowed to drift. The Minister has safeguarded the ability to grant additional time if there is genuine reason to so do. However, the failure to put an upper time limit on the process appears surprising. The Minister should either clarify or reconsider this aspect. Does he understand my point? The absence of an upper time limit simply allows matters to drift. One seeks quick, fair decisions that get through the system.
I can see the Deputy's point. I also can envisage other circumstances such as, for example, a key person in a process who was in a position to answer a particular question might be away on holiday for three weeks and consequently would not be available. The advice of the Broadcasting Complaints Commission which has been engaged in such a process is that such circumstances do arise. It is not to allow a get-out clause whereby no response is made. There is an obvious requirement to make a response that would not be excessive in going beyond the provisions made.
However, such provisions have not been included.
I must examine the particular wording.
I do not wish to make a major issue out of this. Perhaps the Minister will re-examine the point. However, to have an upper time limit——
Section 48(5) states, "such further period ... as the Committee allows to comment on the complaint". The committee has the ability to apply a restriction on the time allowed. The indication that one seeks a response within seven days shows that one is seeking a prompt response. While this gives the committee permission to allow a further period, it is not being prescriptive as to what that period might be. Clearly, however, it would not be six months.
Why not? If the time period is removed, it is not at all clear. I am trying to put pressure on the compliance committee, as well as on those involved in making the complaint. This is similar to the position in respect of planning authorities in that planning decisions drifted for months before an eight week time limit was imposed. I would have thought the committee should be faced by a time constraint set down in legislation when finalising the result of a complaint, which is the reason it was included in the Bill in the first place. If three weeks is an inappropriate period in a case in which a complaint was received in August but people were on holidays for three weeks, that is fair enough. However, the Bill should state there must be exceptional circumstances determined by X, Y or Z. Simply giving the committee the power to extend indefinitely the period in which it must produce a result may not be desirable.
I take the points made by the Deputy. He can see the other side of the argument, that having an overly prescriptive timeline may lead to certain circumstances in which one cannot order one's business effectively.
I accept a period of three weeks is somewhat tight. However, one should not allow the limit to be open-ended, which is what is proposed.
The advice of the Broadcasting Complaints Commission which has expertise in this regard is that such a restriction would be overly restrictive. My understanding is that the commission is timely in the manner in which it turns around complaints and is not excessive. However, I take the Deputy's point.
With respect, if one asked for the advice of planners, they probably would tell one that they could do with 12 weeks rather than eight when making a decision. However, the public suggests a decision should be made within three weeks because planners only begin to examine a case ten days before they are obliged to make a decision.
In this case, however, I am legislating for a period of seven days as my target.
No, the Minister is stating the compliance committee can make a decision within that seven day period to extend the time allowed.
Clearly, however, seven days is the expected timeline. The compliance committee is being given flexibility to set a slightly longer timeline in circumstances in which this is appropriate.
There is no upper limit.
The difficulty with setting an upper limit is that one might detract from the timeliness one seeks, namely, a prompt and immediate response within seven days. Let us consider the matter in terms of what checks need to be provided for and revert to it on Report Stage.
I move amendment No. 73:
In page 54, subsection (17), lines 13 and 14, to delete "may as soon as may be but not later than" and substitute "shall endeavor to within".
I move amendment No. 74:
In page 54, subsection (21), line 42, after "opinion" to insert "inter alia ”.
I move amendment No. 75:
In page 55, subsection (21)(c), line 1, to delete “a proposed” and substitute “the proposed”.
I move amendment No. 76:
In page 55, subsection (21)(d), line 3, to delete “a proposed” and substitute “the proposed”.
I move amendment No. 77:
In page 55, subsection (21)(g), lines 8 and 9, to delete “transgress standards of public decency” and substitute “be harmful or offensive”.
Is there a difference in legal terms between "standards of public decency" and "harmful or offensive"?
Court cases set precedents and the interpretations of judges must be followed. The term "harm and offence" instead of "taste and decency" is now used in the United Kingdom. I understand UK precedents in the interpretation of terms still apply in Ireland.
I seek the Minister's advice on the right of reply provision in section 49. The section is an improvement on the provision in the current legislation, as someone whose good name has been brought into disrepute by something stated on radio or television will have a fair right of reply within a certain period. Can this right be extended to the person's family if he or she is unable to speak on radio or television? For example, if someone with a disability was treated unfairly, would the right of reply extend to his or her family? The Minister need not respond immediately, as I just wanted to flag the issue. From a quick reading of the section, I am unsure as to how it addresses the matter. The person concerned may not be able to go on radio because, for example, he or she is deaf.
What about a deceased person who has been libelled? The obvious example is the media's treatment of the tragic death of Liam Lawlor. Are we providing a right of reply for a person's family? It is an important issue. A minority of journalists view someone's death as open season since they cannot be sued for libel. As it is an issue dealt with in defamation and libel law, dealing with it in this Bill might not be appropriate, but my concern is genuine and I ask the Minister to consider the matter. He need not give a detailed answer now. Perhaps the matter has been addressed.
I am reading the relevant provision. It is one of the Bill's most progressive. I hope it has got the balance right and will not unduly complicate the way in which our broadcasters work. It allows corrections to be made and for a right of reply. It will keep people out of court without relying on a complex, expensive and fraught libel law system. It is good for broadcasting and individuals injured by inaccurate or other comments. It gives a wronged person the ability to request that a certain correction be made. While the authority and broadcasters must work through the mechanisms in practice, it could include a provision to enable someone else to make a statement. Nothing precludes anyone such as a solicitor making a statement on air on behalf of another.
My point is more specific. I will give an extreme example, as it will recur. If someone dies in tragic and uncertain circumstances, people are free to report in a way that need not be fully accurate because the family of the deceased cannot sue for libel. We are trying to keep people out of court and ensure a family need not go to the expense of hiring a solicitor or barrister if its name or that of a loved one has been treated in an irresponsible manner by a radio or television station. People will be able to receive a fair hearing before the authority or the complaints committee and force a right of reply. I have mentioned an extreme example, but there are numerous such cases and we should try to address the issue. Doing so in libel law is difficult, but doing so in this Bill would avoid court cases and the complications involved. A deceased person's family has a right to defend his or her good name. I feel strongly about this issue.
I take the Deputy's point, but the provisions do not allow someone to take a case to seek a right of reply on behalf of a deceased person. The making of corrections must be worked on between the compliance committee of the authority and the broadcaster. We do not want to be too prescriptive by detailing how much air time a person should receive, when the reply should be made or the form it should take. Practice will be built up over time. The compliance committee of the authority will have ultimate control over broadcasters in how the issue is managed. The provision is designed to be flexible and recognise that the stories require certain human instincts about what type of reply is appropriate. The provision does not extend to the family of the deceased.
We could include the family of the deceased in subsection (6) which states: "A person who wishes to exercise a right of reply in accordance with a scheme shall make a request in writing addressed to the broadcaster concerned". We could include a reference to a relative in this definition. I am not sure whether it is possible to deal with it in this way but I ask the Minister to look at it before Report Stage. If not, I will introduce an amendment. I should have done something on it before today. I was going to seek the Minister's advice on it beforehand.
Is the Minister absolutely certain it does not include it? How is it specific that it does not include that circumstance?
The requester has to be the person affected.
It does not.
Subsection (6) provides that it is a person who wishes to exercise a right of reply in accordance with a scheme. Is it stated that it has to be personal to that person and, if so, where is it?
I read it in the same way as Deputy McManus read it. That is why I seek clarity on it.
That definition of the person who has been impugned is in subsection (2), line 21 of page 52. It reads:
Subject to this section, any person whose honour or reputation has been impugned by an assertion of incorrect facts or information in a broadcast shall have a right of reply.
Therefore, it is the person who makes the request.
I move amendment No. 78:
In page 55, subsection (22)(b), line 43, to delete “such” and substitute “the end of such longer”.
I move amendment No. 79:
In page 56, subsection (23), line 3, to delete "not complied with such notification" and substitute "not remedied its non-compliance".
I move amendment No. 80:
In page 56, subsection (23), line 7, to delete "with the notification" and substitute "with a decision undersubsection (17)”.
I move amendment No. 81:
In page 56, subsection (24)(a), line 11, to delete “with the notification” and substitute “with a decision under subsection (17)”.
I move amendment No. 82:
In page 56, subsection (26)(a), line 21, to delete “made” and substitute “prepared”.
Amendments Nos. 84 to 92, inclusive, are related to amendment No. 83. Amendment No. 86 is a technical alternative to amendment No. 85. Amendment No. 88 is a technical alternative to amendment No. 87. Amendment No. 91 is a technical alternative to amendment No. 90. Amendments Nos. 83 to 92, inclusive, may be discussed together.
I move amendment No. 83:
In page 57, lines 1 to 17, to delete subsection (2) and substitute the following:
"(2) The Compliance Committee may conduct by appointing as an investigator a member of the staff of the Authority or another person the Committee considers to be suitably qualified to conduct, an investigation under this section if it has reasonable grounds for believing that a contractor is not providing a service in accordance with the terms of the contractor's contract.".
I propose amendments Nos. 83, 85, 87, 89, 90 and 92. These amendments are intended to clarify the respective roles of the Broadcasting Authority of Ireland and the Commission for Communications Regulation with regard to responsibility for investigating interference with the frequency spectrum utilised by commercial and community broadcasters. This responsibility lies primarily with the Commission for Communications Regulation as the guardian of the national radio frequency spectrum and the text of section 50 has been accordingly amended to ensure clarity.
In respect of amendment No. 92 this amendment provides clarity that the financial sanctions mechanism proposed in sections 52 to 56 applies only to serious or repeated breaches of the requirements of Part 3 and section 106 of the Act, that is, significant or continuing breaches relating to broadcasting standards.
Deputy Coveney's amendments Nos. 84, 86, 88, and 91 seek to extend the remit of the compliance committee to investigate complaints against contractors of not respecting intellectual property rights and provides for sanctions to be taken against those found in breach of copyright. Copyright law in Ireland is already well provided for. Copyright law of the Republic of Ireland is governed by the Copyright and Related Rights Act 2000. This Act is administered by the Department of Enterprise, Trade and Employment. Moreover, there is recourse to the courts for the owner of the rights to protect his rights against an alleged infringer. In this regard, I do not consider it useful to provide additional duties for the compliance committee in an area which is separately covered by Irish law.
Consequently I do not accept the proposed amendments.
My amendments Nos. 84, 86, 88 and 91 are linked. They are not a technical alternative to the Minister's amendments as described by the Bills Office. Amendment No. 86 is not a technical alternative to amendment No. 85. I just want to correct the record on that issue. The Minister is correct in saying there is copyright law in Ireland and that a case can be taken on the basis of that law if there is an intellectual property right legal case to be taken. We are setting up a compliance committee. If a contractor abuses copyright legislation that impinges on somebody else the compliance committee, as the regulating body, should take note of that. One cannot allow a copyright case to take place separately to the regulator and that the regulator ignores that process entirely. I do not suggest the compliance committee would be the arbitrator on whether there is an intellectual property rights legal issue but if there needs to be an investigation and if as part of that investigation there is an intellectual property rights issue or a breach of copyright law, that would form part of the investigation. One cannot expect the compliance committee to do the job of a court. All we are asking is that it be a factor along with those contained in subsection (2) (a) and (b). We have sought to add it again as subsection (5) (c). We are flagging to any potential broadcasters or contractors that intellectual property rights matter, that Irish copyright law applies to broadcasting in the same way as it does to other areas and that the compliance committee will investigate it on foot of a credible complaint. I did not think what I was proposing was unreasonable.
Reasonable or otherwise, it would not lead to a proper legal structure. We have the industrial property tribunal and underneath that the copyright tribunal which is mandated to deal with issues in regard to intellectual property. Ultimately, in this area we have the courts. It is impossible for the broadcasting regulator to take on that legal function and create a separate enforcement structure to the one that legally is in place.
I move amendment No. 85:
In page 57, lines 34 to 42, to delete subsection (5) and substitute the following:
"(5) Where an investigator, having conducted an investigation undersubsection (2), forms a view that a contractor is not providing the service referred to in that subsection in accordance with the terms of the contractor’s contract, then he or she shall notify the finding to the contractor and afford that contractor an opportunity to make submissions in accordance with any rules made under subsection (8) at a hearing before the Compliance Committee in respect of the matter under investigation.
I move amendment No. 87:
In page 58, subsection (7)(a), lines 2 and 3, to delete all words from and including “subsection” in line 2 down to and including “both” in line 3 and substitute the following:
"subsection (2) in accordance with the terms of the contractor's contract".
I move amendment No. 89:
In page 58, between lines 10 and 11, to insert the following subsection:
"(9) In this section "investigator" means a person appointed as such undersubsection (1).”.
I move amendment No. 90:
In page 58, subsection (1)(b), lines 25 to 27, to delete all words from and including “or”, where it secondly occurs in line 25 down to and including “interference” in line 27 and substitute “and the nature of that failure”.
I move amendment No. 92:
In page 59, line 22, to delete "failure" and substitute "serious or repeated failure".
I move amendment No. 93:
In page 59, subsection (1), line 38, to delete ", 106(3) or (4) and substitute "or106(3)”.
I move amendment No. 94:
In page 59, subsection (2), line 40, after "particular" to insert "apparent".
I move amendment No. 95:
In page 60, subsection (5), line 14, to delete "a breach" and substitute "an apparent breach".
What is the legal difference between "a breach" and "an apparent breach"?
Until it is proved, it is apparent.
I thank Deputy McManus.
As with amendment No. 94, one is particular and the other is apparent.
Until it is proved, it is apparent. It is a breach when it is proven.
Does the Deputy want to swap sides?
I move amendment No. 96:
In page 60, subsection (5), line 26, to delete "they are" and substitute "the Committee is".
I move amendment No. 97:
In page 62, subsection (1), line 32, to delete "54(3)(i)" and substitute"54(5)"
I move amendment No. 98:
In page 64, paragraph (g), line 4, after “programme” to insert “material”.
I move amendment No. 99:
In page 64, paragraph (i), lines 9 and 10, to delete “a programme’s content” and substitute “the programme material”.
I move amendment No. 100:
In page 64, paragraph (o), line 28, to delete “has” and substitute “had”.
I move amendment No. 101:
In page 64, paragraph (r), line 38, to delete “Authority or another person” and substitute “Court or Authority”.
I move amendment No. 102:
In page 65, subsection (3), line 41, to delete "investigations officer" and substitute the following:
"investigator underChapter 1 or investigating officer under Chapter 2, as the case may be”.
Amendments Nos. 103, 105 and 107 to 110, inclusive, are related and may be discussed together.
I move amendment No. 103:
In page 68, susbsection (1), to delete line 32 and substitute the following:
(1) In this section "network provider" means a person providing or operating an electronic communications network which is used for the distribution, transmission or retransmission of broadcasting services to the public.
(2) During the continuance of any national emergency, the
Section 61(4) empowers the authority, at the request of the Minister, to require a broadcasting contractor to allocate broadcasting time for announcements for and on behalf of any Minister in the event of a major emergency in connection with the functions of that Minister. Amendments Nos. 103, 105 and 107 to 109, inclusive, extend this requirement to networks located in the State that distribute, transmit or retransmit broadcasting services to the public, such as cable systems.
Amendment No. 110 arises on foot of discussions with the Broadcasting Commission of Ireland, BCI, in respect of section 62, which provides that the authority may not grant a radio broadcasting contract to a person who has been convicted in the past five years of certain offences relating to wireless telegraphy, in essence pirate broadcasters. The BCI has argued that five years is an excessive period if we are to attract pirates into mainstream regulated broadcasting. Having listened to the arguments, I propose to reduce the period from five years to three years.
I agree with amendment No. 110. Given the way in which radio has developed in Ireland, many talented broadcasters currently on the air were once members of pirate stations. We can all name them. Many of us used to listen to pirate radio stations because there were not as many licences as there are now. The deficit was an error, as a number of those broadcasters have entered mainstream legal radio broadcasting.
We should encourage people out of piracy and into mainstream broadcasting. Pirate broadcasters must face some sanction, but withholding a licence for three years is excessive. Given the opinions on diversity in broadcasting that the Minister expressed while he was in opposition, he probably shares my concerns. Many artistic people and interesting broadcasters are not the most organised or law abiding people. While we must ensure there is a disincentive to operate pirate radio stations, it does not make sense to tell a pirate broadcaster who, seeking to regularise his or her position, goes to the expense and trouble of applying for a licence to re-apply when he or she has been off the air for three years. It is tricky. We do not want to tell people that operating without licences is fine. There must be a break, but are we being too heavy-handed? I would be interested to know the views of the Minister and Deputy McManus.
The measure allowing the Minister to go on the air to solve a national emergency is fair. I presume the provision has been transposed from other broadcasting legislation. I assume that the Green Party getting into trouble in the middle of an election campaign would not be deemed an emergency. Does amendment No. 103 apply to the national emergency provision? It seems to define "network provider", although the second part refers to "the continuance of any national emergency".
My political point is on amendment No. 110 to section 62. The best way to deal with pirate radio stations is to shut them down and fine them heavily. If they go through the licensing process, licences are on offer and they are the best bidders in terms of providing quality stations and talent, we should facilitate them. The punishment should be a fine or imprisonment. I am unsure of the relevant legislation. Banning them from broadcasting for three years does not seem to be the most sensible approach.
I support the three years provision, as five years would be too penal. What fine is incurred by a pirate radio station that is closed down or taken to court? The reasons for a ban should be graded. Some pirate radio stations evolve haphazardly, as Deputy Coveney described. They compete unfairly and, since it could be termed illegal trading, the situation must be dealt with, but other stations may play a more negative role from time to time. For example, could the issuance of inappropriate material be taken into account? Should the question of whether the material is offensive, harmful, racist, explicit in its sexual content or so on be taken into account? Is a station's record a matter for the licensing process? There is a gulf between different pirate radio stations, but they are all unlicensed and trading illegally. Whether a station is benign or malign should be considered. Is the Minister satisfied that this issue is considered in the licensing process? It is a matter of concern.
For clarification, the emergency provisions merely extend what is in place for terrestrial broadcasters to cable operators or others who do not have terrestrial free-to-air services here. Therefore, it extends the provisions across the stiffened broadcasting platforms.
Does the Minister have the technical capacity to do that?
In this case, it would be an electronic message. I cannot think of a particular example, but some health emergency might occur where one wants to get out a message concerning a pandemic.
If Sellafield exploded in the morning it would be a potential national disaster for Ireland, if the wind happened to be blowing in our direction. Is the Minister saying he would be able to put up a text message on all television screens in the country, whether people happened to be watching Sky, RTE, TV3, TG4, UTV or BBC?
I am told that the cable companies would be so instructed and they have the ability to get such a message out. I cannot think of any instance here although I remember during my childhood getting overspill from the UK. One would see public broadcasters inserting messages during programming to alert keyholders in a certain area during the Troubles.
Was that via satellite though?
No, it cannot work on satellite.
It only applies to cable and IPTV, or other broadcasters within our jurisdiction. As I said, satellite is outside our area.
In terms of the second point, I have listened to both views and have consulted with the Attorney General as to what the provisions are. The provisions of the wireless and telegraphy legislation concern pirate radio offences and the confiscation of equipment. There are fines on conviction from €5,000 up to €25,000. The Bill will increase such fines up to €1 million. The difficulty is that it is quite hard to pursue pirates. One may find out where the antenna and other equipment is, but that might not lead to the operators. It is not an easy matter to manage. I do not disagree with what Deputy Coveney said earlier, in that many of our current broadcasters started in a pirate environment. That is different to present circumstances, however, which involve a much wider proliferation of local and national radio stations offering a greater diversity of programming, which is continuing to evolve. The other night, I was listening to a new rock station. One of the presenters, Pat James, brought me back to Radio Dublin and other pirates of the 1970s. Dublin was quite different then, however, compared to what we have now. Recognising that it is a changed world, as such, people no longer move from pirate stations into the licensed area.
Deputy McManus's point is that there are different degrees of offence, so should we be saying that they may not be considered for the awarding of a contract for a period of up to three or five years? There should be some flexibility there. Some guy who has always wanted to be a DJ, may be operating out of his garage, playing pretty harmless stuff, but may be shut down and have his equipment confiscated. He may be leaving college and may wish to enter broadcasting. He may organise financial support and apply for a licence, so it is a bit over the top for us to legally ban that person from the airwaves for three or five years. There should be some discretion. However, if people are trying to make money in a devious way or spreading irresponsible messages on the pirate airwaves, they need to be dealt with more harshly.
The other scenario does happen. We all know people who are broadcasting on pirate stations who should not be. However, we should encourage the transition from pirate operations to a licensed radio sector, rather than hinder it. I do not think we will be able to deal with it through this Bill. The pirates will continue to broadcast and the legislation will not be seen as a deterrent. It does not encourage people to apply for a radio licence.
There is a need for a deterrent because we have an evolving situation which allows for many more community radio licences. We do not want to undermine them and the resources they build up. To a certain extent, one must ask whether an exclusion which is too long would undermine some of the deterrent effect. Someone might say "I will keep going on as a pirate because I do not have the prospect of getting out of that system and into a licensed one." On those grounds, I will certainly discuss with the Attorney General's office what the possibilities might be.
As regards the content of such pirate stations and the implications of that for policy making, there is no monitoring of that content. If it is offensive in terms of some of the examples that Deputy McManus mentioned, as I understand it, that would be a criminal matter outside the ambit of the wireless and telegraphy legislation. It is not a matter for the broadcasting legislation which is what we are dealing with regarding the application of licences. There are provisions that cover such eventualities, but the broadcasting legislation does not cover that responsibility.
Amendment No. 104 is a drafting amendment which has already been discussed with Amendment No. 2.
I move amendment No. 104:
In page 68, subsection (2), line 38, to delete "power" and substitute "the power".
I move amendment No. 105:
In page 68, subsection (2), line 39, to delete "to" and substitute "and network providers to".
I move amendment No. 106:
In page 69, subsection (4), line 11, to delete "Government, and the" and substitute "Government. The".
Amendment No. 107 has already been discussed with amendment No. 103.
I move amendment No. 107:
In page 69, between lines 12 and 13, to insert the following subsection:
"(5) At the request of the Minister, the Authority shall direct a network provider, in a manner to be specified by the Authority, to carry broadcast announcements for and on behalf of any Minister of the Government, in the event of a major emergency, in connection with the functions of that Minister of the Government. The network provider shall comply with the direction.".
Amendment No. 108 has already been discussed with amendment No. 103.
I move amendment No. 108:
In page 69, subsection (5), line 13, to delete "subsection (4)" and substitute "subsection (5) or (6)".
Amendment No. 109 has already been discussed with amendment No. 103.
I move amendment No. 109:
In page 69, subsection (5), line 14, to delete "contractor" and substitute "contractor or network provider".
Amendment No. 110 in the name of the Minister has already been discussed with amendment No. 103.
I move amendment No. 110:
In page 69, line 20, to delete "5 years" and substitute "3 years".
Amendments Nos. 111, 119, 120, 122, 125, 128 and 133 to 135, inclusive, are related and may be discussed together. Amendment No. 134 is a technical alternative to amendment No. 133.
I move amendment No. 111:
In page 69, paragraph (a), line 37, after "of" to insert ", and accountable to,".
Amendments Nos. 111 and 120 relate to the core definition of community broadcasting on both radio and television. In both cases the core definition of a community broadcaster already reads that the broadcaster is representative of the community in question. The proposed amendments add the criteria that the broadcaster be "accountable to" the community. This amendment will strengthen the criteria that must be met for an organisation to qualify as a community broadcaster in a manner in line with the practice across Europe. Community broadcasters have raised various issues around definition, primarily with a view to ensuring the appropriateness of the definition. I will continue to review this in advance of Report Stage, including in discussions with the Broadcasting Commission of Ireland.
Government amendments Nos. 119, 122, 128 and 135 also relate to the basic concepts around community broadcasting. These amendments ensure that in terms of broadcasting, "community" can encompass communities of interest as well as communities based solely on geographic locations. This is a clarification sought by the community broadcasters and has already been reflected in the Bill to some extent. This change makes sense in that it removes the possible preclusion of valid community broadcasters receiving a licence simply because they are not confined to a locality. The primary licensing requirements in relation to purpose, ownership and community structure would still, of course, apply.
Amendment No. 125 in the name of Deputy McManus relates to the information made available by community broadcasters on electronic programme guides regulated in Ireland and whether the community broadcasters need to pay for the provision of such information. The main platforms in question here would be the MMDS and cable platforms.
The EPG framework is set out in section 74. This is essentially an updating of the EPG framework that was set out in the Broadcasting Act 2001. The framework ensures that the positions of RTE, TV3 and TG4 are prioritised on EPGs made available in the state. Deputy McManus's amendment suggests that community TV stations should not be obliged to pay for the information that describes the service on the EPG. My understanding is that the service description is not provided by the cable-MMDS operator but by a third party. It is not, therefore, within the control of the cable-MMDS provider to provide the text. The working situation is that all broadcasters must pay the third party who compiles and provides the information found on the EPG. If a community broadcaster wishes to have information on its content detailed on the EPG, it should pay the costs required by the third party who compiles the information. It is appropriate that the cable-MMDS operators should facilitate a minimum identification to community channels carried. If this is not the case, I would be happy to consider a Report Stage amendment which might ensure this.
Amendments Nos. 133 and 134, in my name and that of Deputy McManus, respectively, can be discussed together. Both deal with the same issue, namely, on which networks or packages on networks should the community channel be included. Should it be on the packages available only in analogue or only in digital, or in both? Analogue has less capacity and, therefore, the provision of the community channel may be an issue for the operator. Section 77(7) makes it the responsibility of the broadcasting authority of Ireland to decide the network or networks that should be used to provide the community channel and, as a consequence, the viewers that will eventually watch it.
Amendment No. 133 proposes that the broadcasting authority of Ireland may determine whether it is the digital or the analogue network that carries the community broadcaster. I am of the view that it would be best left to the authority to make such decisions because the remit, locality and target audience of community broadcasters differs from broadcaster to broadcaster. The authority will then be in a position to ensure that the appropriate audience receives the channel, which I believe is also the objective of Deputy McManus's amendment. For this reason, I propose the acceptance of amendment No. 133. I cannot accept amendment No. 134.
I welcome the amendments tabled by the Minister. Community broadcasting is an interesting phenomenon and I hope it will grow. It is quite different from mainstream broadcasting and is limited in the context of how much it can develop. However, it is an important strand in broadcasting. In 2002, the Minister's predecessor described it as a valued element that should be recognised as a third strand in Irish broadcasting and called on the BCI and the Department to promote it. This issue has been taken up by the European Parliament and a call was made for member states "to make television and radio frequency spectrum available, both analogue and digital, bearing in mind that the service provided by community media is not to be assessed in terms of opportunity cost or justification of the cost of spectrum allocation but rather in the social value it represents".
I will be obliged to consider the changes proposed by the Minister. The straightforward proposal relating to a community of interest is welcome because it recognises that potential exists in respect of interest groups, which are quite different from local communities. Such groups can operate on a nationwide basis, particularly in the context of a community of interest.
With regard to the provision and the cost, it must be recognised that community broadcasters experience difficulties which do not arise for other broadcasters. In so far as is possible, absolute support must be provided to ensure that community broadcasting has a future.
A point was made, in the context of availability, that cable operators carry community television broadcasters for all their customers. There is a loophole in the 2001 Act and I understand it is proposed that the broadcasting authority of Ireland will deal with this. That is all well and good. However, we must be certain that the policy outlined by the Minister and his predecessor must be acted upon by the new authority. It would be of assistance if the Minister could state that there is a policy in place which supports community broadcasting, which recognises that such broadcasting has a social value, which is not in the mainstream and which does not, therefore, have the capacity or capability to generate revenue in the way that it is generated by those involved in other strands of broadcasting. In the context of people being aware of, accessing and being able to participate in community broadcasting, it is important that such provision be made. It would be of major assistance if a policy such as that to which I refer is driven by the authority and if people realise that the authority will operate within the framework I have outlined.
I would like to give a clear signal to the new authority that the community broadcasting sector, in the areas of radio and television, has a great deal to offer. As technology develops, local and community-based stations will have the potential to produce high quality programmes which concentrate on local stories that might be missed by larger broadcasters. The provisions in the Bill represent an attempt to support the development of community broadcasting.
To return to what I stated earlier with regard to pirate radio stations, people who become involved in community broadcasting can discover that they possess a particular skill or have an interest in this area and this leads them on to a career in the industry. That is appropriate and important and in its own right, it is extremely useful. One of the best interviews in which I took part since entering office was conducted by a 15 year old Dubliner working for Da Gist TV, which is a community-based organisation. During the interview I was asked some of the best questions that have been put to me since I became Minister.
I wish that could be said for the interviews conducted by broadcasters in general
The interview in question was straighter and more to the point than any other interview I have done. Community broadcasting has a major role to play.
In the context of the flexibility relating to the "must carry" arrangement we are seeking the new authority to implement, we recognise the reality that there is a restriction on the number of channels which the analogue system can accommodate. Certain community broadcasters may have a different role in respect of how they obtain access to such restricted channels in the analogue space or on the standard cable network. This does not apply in the case of the digital network. The latter has such a capacity to carry new channels that is should be possible for all community broadcasters to be accommodated. However, it will be the responsibility of the broadcasting authority of Ireland to manage the system. As we move increasingly closer to digital platforms, opportunities will emerge for community broadcasters in the area of television.
I appreciate Deputy McManus's comments and I agree with the sentiments she expressed.
I move amendment No. 112:
In page 70, subsection (5), line 30, to delete "will" and substitute "shall".
I move amendment No. 113:
In page 74, subsection (4)(i), lines 1 and 2, to delete “sound broadcasting contracts” and substitute “a sound broadcasting contract”.
I move amendment No. 114:
In page 74, subsection (6)(c), line 16, to delete “to” and substitute “of”.
Amendments Nos. 115 and 255 are related and will be discussed together.
I move amendment No. 115:
In page 74, subsection (9), line 32, to delete "shall not exceed 7 years" and substitute "shall not exceed 10 years".
The Minister will be aware from where I am coming in respect of this amendment which relates to contract extensions. Therefore, if a licence is approaching its full term and the broadcaster seeks an extension, I propose that under this section the contract extension agreed should be for not more than ten years rather than for not more than seven years. For example, where a radio station with a licence that is coming to an end and where there is no other competition for the use of that licence, but the incumbent wants to continue the service and to continue to be licensed, I propose that the contract extension agreed should be for not more than ten years. This does not necessarily mean the authority will be required to agree an extension of ten years. It may decide to extend for seven or five years, depending on the circumstances.
There is considerable expense for a contractor, operator or broadcaster in putting together a case for an extension of a licence or a new licence. There has been strong lobbying from the industry that if it is to invest and plan for the future, having the capacity to get a ten-year extension makes sense. I tend to agree with that, particularly when there are not other operators competing for the licence. If there are, it is a different scenario. However, what we are discussing is essentially a formality, where there is a roll-over from the end of one contract period to another. We should give the authority the capacity to set a ten-year period in place before renewal is required. I ask the Minister to consider this.
The fast-track system is a good development and is to be welcomed. However, it seems the Minister has gone half way down the road and then lost his way somewhat by restricting contract extension unnecessarily. A ten-year period is the norm. Our amendment suggests the contract period should not exceed ten years. This does not mean one must go to ten years, but it allows that capability. This is a reasonable approach.
The independent sector has made the valid point that what happens currently is that existing radio stations that are doing a good job are being penalised when it comes to applying for renewal of a licence, particularly when nobody else is trying to muscle in on their space or compete with them. It is difficult to understand why this should cause difficulties in terms of their licensing arrangements. Even with the fast-track process, it seems there is considerable effort involved in getting the contract in place. I cannot understand why the Minister did not go for a ten-year limit initially. It was only when this was brought to his attention in the Seanad that he increased the time frame from five years to seven. This seems a ludicrous time frame, but I am not in that business so I may be wrong.
It seems there is a lack of logic in the decision because where applicants for a licence find that nobody else applies, they are somehow knocked into a different category. This has no validity. The proposal in the amendment is reasonable. It is not something that must be applied in all circumstances, but is flexible and allows for a period of time whereby people can put relatively long-term planning in place secure in the knowledge they will be there till the end of the period.
The Minister has improved the system considerably and has dealt with an issue that was the cause of a certain amount of irritation among broadcasters. They were dissatisfied because there was not a fast-track system in place where these circumstances pertained. I ask the Minister to reconsider. I will reintroduce this on Report Stage and I imagine Deputy Coveney will do the same, but it seems unnecessary to have to do so. I hope the Minister will agree to streamline it so that the ten-year extension is the norm. Where there are exceptional circumstances or reasons it should be less, that is allowed for in our amendment. The capacity is there to ensure the arrangements are in place to suit each case, up to ten years.
I understand the point being made by the Deputies. The fast track is a new mechanism that should benefit broadcasters where there is no competing bid for a licence. It is a favourable situation if it helps the broadcaster to avoid having to go through a more complicated process. This mechanism is more favourable and attractive. It recognises that if the period was to be ten years, a broadcaster would have a 20-year period when that valuable public asset, which is the spectrum and the ability to broadcast, would not have been checked with regard to whether there was a competing interest or application. That is a long period and seven years is more reasonable. I understand that broadcasters would like as long a period as possible in terms of investment returns. However, seven years is not a short period. It is the life time of a Secretary General or of typical appointments in the public service where there is a seven-year restriction.
I will consider what the Deputies have said and come back on the issue on Report Stage. However, having raised the time period already, I would have to have serious consideration before going further. The fear is it would create a situation where stations could broadcast for 20 years, without as extensive a check as might be possible as to whether they are providing the public service we expect in terms of the allocation of the spectrum.
It is not necessarily the case that if the ten-year period was permitted a broadcaster would broadcast for 20 years unchecked. The decision might be to only give an extension for five years. We suggest that we set the parameters so that if the authority deems it appropriate, it can extend the period to ten, but it may decide on five or seven years if it has the same concerns as the Minister. We should not forget that we have a compliance committee in place and a series of codes of practice by which broadcasters must abide. We have a series of mechanisms that require broadcasters to meet the terms of their licence.
This is not a case of giving somebody a licence and asking them to come back in ten years and renewing it for another ten. There are a series of safeguards in the legislation. We have a slightly bizarre situation with this legislation where, if broadcasters go through a competitive process to win their licence — I know it is a more laborious and expensive process — they get a ten year licence, but at the end of that ten years, if no other broadcaster is challenging for the licence, the extension available is only for a maximum of seven years. Therefore, it is almost advantageous if another broadcaster competes for the licence.
If the term from start to finish of a licence is to be five, seven or ten years, it makes sense to have the same period, whether one wins it after a competitive process or whether one is being granted an extension because nobody else wants the licence. Primarily this will be the case in areas of the market where there is a successful operator who is unchallenged in terms of that licence, either because somebody else does not deem it as viable or because that operator is so strong in the marketplace that it is not worth challenging them. In other words, they are doing a pretty good job. I do not understand the rationale for restricting the ability of the authority to be able to give a ten-year term if it sees this as a no-brainer, that these people are doing a good job and they should be allowed continue for another licence term. This is another licence term and not just an extension of a contract as such.
If it makes sense to grant someone a licence to operate for ten years, I do not see why it does not make sense at the end of that ten-year period, and if they are still doing a good job, that they would not be given another ten-year extension rather than require them to come back after seven years. There is a requirement for them to be checked after seven rather than ten years, because ten years is a long time, but they could be operating for 20 years. All this is true but if that concern is there, the authority can still put a limit of seven, or five or three years if it wishes, and if it has concerns in that regard. If it is a no-brainer in terms of an extension and somebody is doing a very good job, then we should be allowing the full licensed period to be applied again after the fast-track mechanism.
The Minister is being a little fearful here. He talks about a 20-year period where a broadcaster would be operating without being checked. This is not actually the case. They operate for ten years and they must then go back to the base line again and apply for another contract for ten years if there are other competitors. However, if there are no competitors, somehow things change and they will only be allowed seven years. It does not make sense to view this as 20 years uninterrupted; it is ten years and very definitely interrupted, where the whole process is opened out and anyone can apply. If nobody applies, I would have thought with the fast-track system in place — which makes sense because the competitors are not there — that the operator would be treated as before. After the ten-year period, they are checked again and they get up to another ten-year period, if that is appropriate. I would have thought it is appropriate in most cases when there is no competitor. What happens if there is no competition the first time out?
There is a vote in the Dáil and I suggest that we suspend until 12.20 p.m. Is that agreed?
Deputy Seán Power rather than myself will return after the vote, if the committee agrees.
Would that be for the remainder of the day?
I do not know what time we are due to conclude but I must go to Brussels in the afternoon.
I suggest we suspend until 1.30 p.m.
It would have to be for a short period because I have to go to Brussels later in the afternoon.
When are we proposing to finish today?
We were proposing to finish when the Minister had to leave.
Will we continue with the Minister for State, Deputy Seán Power?
I am in the committee's hands in that regard. I am quite happy for the Minister of State to take some sections of the Bill.
I have no problem with that for some of the sections but not for some of the more controversial sections.
I agree. I appreciate the Minister is under time pressures but it is very important legislation and, if at all possible, it would be better for the Minister to take the Bill. I understand next Wednesday is available to us as well.
If we can just deal with today, I propose we suspend until 1.30 p.m. and come back and stay with it until the Minister has to leave at 3 p.m.
We can then adjourn until next week.
That is a much better approach.
The Minister of State, Deputy Seán Power, is well able because he has been involved in the detailed drafting of the Bill right the way through.
Nobody doubts that.
We are on section 67, amendment No. 115.
I will listen to the points raised and we can return to the matter on Report Stage. We have a common purpose to make the fast-track procedure effective. I accept what the Deputies opposite have said, that ten years is standard. We will leave the matter for now and come back to it on Report Stage.
I move amendment No. 116:
In page 78, subsection (2)(b), lines 20 and 21, to delete “other than the Internet, but”.
I move amendment No. 117:
In page 78, subsection (2)(b), line 23, after “network” to insert “, an internet protocol television network”.
I move amendment No. 118:
In page 78, subsection (4), line 33, to delete "other".
I move amendment No. 119:
In page 79, subsection (1), line 26, to delete "community" and substitute "community or community of interest".
I move amendment No. 120:
In page 79, subsection (2)(a), line 36, after “of” to insert “, and accountable to,”.
I move amendment No. 121:
In page 80, subsection (3), line 1, to delete "77(6)” and substitute “77(7)”.
I move amendment No. 122:
In page 80, subsection (6), line 17, to delete "community" and substitute "community or community of interest".
I move amendment No. 123:
In page 80, subsection (7), line 38, to delete "subsection (6)“ and substitute ”subsection (7)”.
I move amendment No. 124:
In page 82, subsection (9), line 7, to delete "a contractor" and substitute "the contractor".
I move amendment No. 125:
In page 82, between lines 12 and 13, to insert the following subsection:
"(11) Community content provision contract holders are exempt from any fees and are to be provided with a minimum level of service identifying the programmes being broadcast.".
I will withdraw the amendment with a view to raising the matter again on Report Stage. I wish to make a general point that occurs later also. Given that the bulk of the amendments are from the Minister, it is difficult to ensure proper scrutiny. The Minister has made the point that they are technical amendments, which I do not dispute, but some of them are not. It probably seems churlish to complain because I suspect some of them are a response to amendments tabled by the Opposition. That is all to the good but the difficulty I have is that we have not had time to scrutinise what the Minister is proposing by way of amendments.
The Minister would have difficulty with that even with his battery of advisers and civil servants. We do not have anything like that backup. I have a problem with essentially nodding through ministerial amendments that are clearly not technical in nature on the basis of hope and faith. Nobody could describe them as that. In the area of community broadcasting I am taking it on trust that the Minister's approach is a good one but I am unhappy with the process. This will arise later also. These are not solely technical amendments that we are dealing with. It would be far better if we had a way of scrutinising ministerial amendments and were given time to do so.
By reputation the Labour Party's legal advice was always seen as being practically second only to the Attorney General's office, such was the skill involved.
Flattery will get the Minister everywhere——
It is true.
——but it is not quite the case that we have a superhuman legal advice service. It is limited.
I move amendment No. 126:
In page 82, subsection (2), line 41, to delete "(a)”.
We are deleting the reference to paragraph (a). That makes sense. I am sorry, I thought we were deleting section 76(a), which would have been line 23. It is just a textual correction.
I move amendment No. 127:
In page 82, subsection (4), line 50, to delete "subsection (3)” and substitute “subsection (1)”.
I move amendment No. 128:
In page 83, subsection (4), line 2, to delete "community" and substitute "community or community of interest".
I move amendment No. 129:
In page 83, subsection (7), line 9, to delete "subsection (3)” and substitute “subsection (1)”.
I move amendment No. 130:
In page 83, subsection (1), lines 37 to 40, to delete paragraph (e).
Amendments Nos. 138 to 140, inclusive, are related to amendment No. 131, therefore, these amendments may be discussed together.
I move amendment No. 131:
In page 83, after line 49, to insert the following subsection:
"(3) In the case where the appropriate network is a digital system, the appropriate network provider shall ensure the re-transmission, by or through his or her appropriate network, of the Houses of the Oireachtas Channel and the Irish Film Channel.".
The amendments in the group relate to concepts such as "must carry" and "must offer". The concept "must carry" is long established in both domestic and European law. It is based on the idea that certain television channels should be made available to the public on any television platform. Those channels are generally the public service channels and the intention is that all television viewers, regardless of platform, should see them. That reflects the fact that viewers may already have paid for the channels, for instance through a television licence fee, or that it is appropriate that certain channels should always be available in the context of cultural identity and diversity and media pluralism.
In Ireland the must carry channels have traditionally been RTE, TG4 and TV3 and in certain cases community channels are also granted must carry rights. The Broadcasting Bill rewrites the framework around must carry and updates it in line with European law and terminology. The Bill, as passed by the Seanad, ensures the primary channels, namely, RTE, TV3 and TG4, will be carried on all suitable electronic communications networks that supply television broadcasting services. These include cable, IPTV, mobile and MMDS, and satellite where the satellite system is under Irish jurisdiction. These channels are, of their nature, already available free to air on the terrestrial networks.
Amendment No. 131 adds the Houses of the Oireachtas channel and the Irish film channel on the list of must-carry services where the system is digital. It makes sense to add them. The Bill sets a framework for the Houses of the Oireachtas Commission to develop an Oireachtas channel and for the Irish Film Board to develop a film channel. As public service channels, it makes sense that they be widely available to Irish viewers, bearing in mind that analogue MMDS and analogue cable operators have limited space on the networks. The must-carry clause for these two channels is restricted to digital broadcast systems only. There is a precedent for this in Irish law. In time, all broadcaster networks will migrate to being digital.
Amendments Nos. 138 and 139 are Government amendments and make proposals for a must-offer framework, especially in respect of satellite broadcasting. My understanding of amendment No. 140, tabled by Deputy McManus, is that its objectives are similar to those of the Government. It will be interesting to determine whether this is the case.
The must-offer concept already applies in UK law. In some ways, it is a counterbalance to the must-carry provision. The proposed new subsection (10) in amendment No. 138 will require the public service broadcasters to offer their service for carriage on any network that provides television broadcasting services. This is without prejudice to their right to seek must-carry status first. The objective is to guarantee ease of access by the viewer to the public service channel. Subsections (11), (12) and (13) deal specifically with must-offer and satellite services. Satellite systems are generally outside Irish jurisdiction and, therefore, may not fall under the standard must-carry rules. The introduction of a must-offer clause in regard to satellite television services offered in Ireland means the public service broadcasters must seek to be in all packages that are offered in Ireland. They must do so only in line with Irish electronic programme guide rules, therefore ensuring their position in any satellite service. That this must-offer requirement applies to all satellite television systems means there cannot be exclusive arrangements with any one satellite operator. Subsection (12) provides that the channels cannot be retailed on the satellite system. No extra charge for their presence can be sought from the public.
Amendment No. 139, in the name of the Government, provides various definitions that are required in section 77 to bring the must-offer clause into being. Deputy McManus submitted amendment No. 140, which would limit the issuing of satellite contracts by the BAI to commercial broadcasters that carry and offer the Irish public service channels as a basic programme service. I sense the objective is the same as mine, that is, to ensure the easy availability of Irish channels in all television satellite systems operating in Ireland. However, I feel my amendments are more appropriate and, therefore, I cannot accept amendment No. 140.
I thank the Minister for taking up this issue. It is curious that those who have access to a satellite service do not necessarily have access to the services for which they are paying their licence fee, as they must do. I am curious that the Minister is asking me about my amendment although he has a panoply with which to assess it. I, however, must assess his in a very short time with very restricted resources. There is an element of trust involved.
As I understand the Minister's amendment, it appears the issue is being addressed. I warmly welcome that because I have had a number of representations on the issue. I have not had a considerable number because a limited number of people are affected but the number is likely to increase over time. An important principle would suggest that if people are paying for a service, they should receive it. I imagine this would be the case in law.
I have a couple of questions, one of which concerns the offer for broadcast. If the offer is not finalised or the process is not completed, what will happen? Amendment No. 138 states: "RTÉ, TG4 and the television service programme contractor shall ensure that their must-offer services are at all times offered for broadcast or re-transmission ... by means of every satellite television service." What happens if they fail to do so or if an obstacle gets in the way of their doing so? Are there financial considerations we need to account for at this point?
The issue of the must-offer service relates to satellite services over which we have control or jurisdiction. As I stated, we do not have jurisdiction over satellite producers based elsewhere. One cannot regulate for a must-carry service in respect of an overseas satellite company because one does not have jurisdiction.
The people to whom I refer will still be in the same position. It will not make any difference to them. What difference does the provision make in that case?
It ensures a public service broadcaster, for example, will not be completely bound to an exclusive contracting arrangement. It is a question of there being a must-offer basis.
I wish to tease out this issue because it is very important for broadcasters, particularly potential satellite operators. Is it the case at present that Sky has exclusive rights to the satellite RTE service? I refer to RTE because it is the obvious example. RTE One and RTE Two are broadcast on Sky, but Sky has exclusive rights to broadcast them via satellite. Senator O'Toole has stated repeatedly that other potential satellite operators which want to compete with Sky in Ireland effectively cannot do so because the exclusive satellite rights to RTE are held by Sky. Is this not the case?
I should have clarified that. While we do not have jurisdiction over broadcasters outside the State, there cannot be an exclusive arrangement in that one must provide the offer of services of other providers.
The consequences of this for RTE, TG4 and TV3 are potentially serious. Sky could state to a broadcaster that if it is not willing to sign an exclusive deal with Sky, it will not beam RTE into Irish households. This would put the Irish broadcasters in a very awkward position because the majority of households with a satellite television service are subscribers to Sky.
I imagine Sky would behave very aggressively to keep other satellite services out of Ireland. It recognises the importance RTE would ascribe to broadcasting through Sky. I want to ensure we know exactly what we are doing although I realise the Minister's intention is correct. Anyone who wants to broadcast via satellite in Ireland should be offered all the free-to-air channels that are supported by public service funds. Has the Minister considered what would occur if one of the bigger players in the market place, such as Sky, which we cannot regulate in any case, decided to be difficult?
I have considered that issue. The fundamental point that must be recognised is that Irish consumers want Irish programmes. There is a great public demand for news services, drama, sports and other programmes based in Ireland.
That is not why people subscribe to Sky. They can receive RTE independently.
In any transmission system, the home-produced, free-to-air channels, backed up by the electronic programme guide regulations, are still the most popular. It is in the interest of a provider of a broadcasting system that they carry such stations. Do we want to legislate for it being exclusive? My instinct is no and it is better to have a must-offer option so that the services paid for by the public may be available on as wide a basis as possible.
Currently, there is a value attached to an exclusive contract. Will there be financial implications if there are no longer exclusive contracts? What about the scenario of an individual installing a satellite dish on his or her property, paying a television licence but not being able to receive RTE?
If it is an Irish satellite company, there will be a requirement for RTE to offer its free-to-air channels.
Only if it is an Irish satellite company. For example, if one purchased a free-standing satellite dish in Lidl and installed it, it would not be connected to an Irish satellite service.
It does not solve the problem.
No, it does not. There may be a legal question as to how one must pay for a television licence but cannot get the services paid for by it. I recall when people were paying waste collection charges but did not get their bins collected. It was brought to court to be resolved. There is something wrong if people are paying a television licence but cannot get the service for which they are paying.
There is a terrestrial analogue service which is available throughout the country.
That will not be available.
I do not know how the Deputy's concern relates to this provision. The must-offer option does not affect this.
No, I appreciate that, but it is still an issue. I had hoped that we might be able to resolve it but it is clear we cannot. It is only for Irish providers or those operating in Ireland.
Yes. This is not treating one operator more favourably than another. It is based on the principle of having those services paid for by the licence fee on as wide a basis as possible. One could argue that it might create a disadvantage for RTE's negotiation position with Sky but it could easily work the other way. The must-offer option is balanced and is not aiming to empower one company at the expense of another.
Is there a financial value attached to having the inclusive contract?
Only the two parties to any such negotiations would know that. It would be difficult determining who is benefiting who in the provision of such services. The reason for this amendment is not to make it a restrictive or an exclusive arrangement. As the services are paid for by the licence fee, it is appropriate for it to be available on as wide a basis as possible.
It is widely available anyway.
It is, but as the broadcasting system evolves, this amendment will ensure it will continue to be.
The problem with this legislation is that it does not apply to satellite broadcasting because the majority of those companies are not Irish.
No, but the definition includes providers available in Ireland. It provides Sky with a reassurance that it has the must-offer clause available as well.
I do not understand how that works. Sky is not an Irish broadcasting company.
No, but it is available in Ireland and within the definition of the must-offer option it is to services that are freely available.
That comes back to the individual with a satellite on his or her property. The service is available but not based in Ireland.
Freesat is not retailing in Ireland. The definition is based on those retailing in Ireland and who have direct contact with consumers.
We are putting an obligation, through regulation, on RTE, TG4 and TV3 to make their services available to a satellite operator retailing in Ireland. However, we have no powers to regulate the retailer because it is based abroad. Am I correct in this?
Yes. We are recognising the reality. We have tried through the television without frontiers and the audio-visual media services directives to get such regulatory powers but we do not have them. We cannot ignore the reality that a large number of households are accessing Irish broadcasting though satellite operators. This provision is designed not to lead to a restrictive availability. It aims to allow other providers to carry the services if they so wish.
How many broadcasting retailing companies would be in that position?
It depends. This provision extends beyond satellite providers to Internet protocol television, cable and other networks. We are legislating for the future and we cannot be certain what new broadcasting platforms will come on board. Currently, it is limited and there are not many providers. We did not want the possibility of a restriction being developed that would hinder new platforms being provided directly to the public.
The Minister has raised an issue regarding Internet protocol television which is linked to the licence fee. It is only a matter of time that a product will be available that will relay RTE programmes an hour after broadcast over a broadband connection. In that context, we will be debating the inappropriateness of the current licence fee system being linked to television ownership.
Will this legislation mean that all free-to-air services, plus the proposed Oireachtas and film channels, must be offered to all broadcasting platforms without any negotiation or charge? Will RTE have to offer its services and, therefore, not be able to name a price for them? Are we damaging the ability of a large broadcaster like RTE to negotiate its programme rights? RTE will want to make some return from its in-house productions when broadcast on, say, an IPTV service. The cards are being stacked in favour of the carrier rather than the producer. I can understand the point when it comes to satellite providers because there are a relatively small number of players. It is in RTE's interest to be on the Sky platform rather than seeking a financial reward for the programming. When it comes to Internet protocol television, computers in the future will become multimedia devices for everything from video conferencing to computer games to television.
It is only a matter of time before the exact same quality is available on a computer that one may get on a television screen, yet there will be no licence fee implication because, within a relatively short period, it will not be possible to determine what is a television. One could make a solid argument for such objects being just as much computer screens as they are television screens. A problem is coming down the track in this regard for television stations, although less so, perhaps, for RTE than for a station such as TV3 which has to cover its costs entirely from commercial revenue. Essentially the exact same programming can be relayed — there will be a requirement to offer it for relay — and I do not envisage any time delay. I understand from an article inThe Sunday Times that in the UK it is an hour or something like that.
It does not affect TV3.
It does because there is a must-carry obligation on TV3——
I understood from the amendment——
——and TG4. This applies to TV3 as well. Perhaps I am trying to open a can of worms that does not exist. However, in five or ten years, when this legislation needs to be as relevant as it is now, we will have a whole new broadcasting system in Ireland as regards how people watch and are entertained. We are saying, in effect, to TV3, RTE and TG4 that they have to provide all their services essentially free of charge on any platform, whether cable, IPTV, satellite or whatever. I can foresee new broadcasters, across a broadband fibre link, essentially providing free television. Will the Minister say how we are protecting against that in this legislation?
We do not know what are the financial implications. One pays a television licence and there are losses and gains, depending on circumstances. Here, however, we are in a different area. Is the Minister aware of the financial implications?
The first channels on free to air include RTE, TV3 and TG4. Members of the public pay a licence and part of its terms include access to such free-to-air services. It is in the long-term interests of those channels to be available on all platforms to audiences in Ireland, as opposed to short-term exclusive contractual arrangements where they would not be available to the public. I do not see this as having financial implications in that sense. The commercial revenue raised from advertising or, indeed, the licence revenue in each case would indicate that the services should be as widely available as possible. Therefore, I do not foresee the effect will make any financial deterrence in that regard.
On Deputy Coveney's point, it goes back slightly to the linear or non-linear definition we dealt with yesterday as regards the change-over from the application of broadcast legislation to non-broadcast services. As regards the difference, where content is being pulled down piece by piece and where it is not being made available on a live basis, the same legislation does not apply. In terms of the existing licensing arrangements, which we are continuing here, the licence relates to the possession of a television set rather than receiving a service. There is provision in the Bill to allow us flexibility to adapt, down the line, the way in which that licensing will be applied. My instinct, as I said yesterday, is not to be restrictive at this time, not to apply the licence to laptop or other devices. That might, in effect, restrict endeavour which we might want to encourage and it would be very difficult to apply. It will require ongoing consideration as to how we are to maintain our licence fee revenues or, indeed, what funding mechanism we have in place. How quickly change has to take place will depend on the speed and the evolution of broadcasting.
The British Government undertook a very similar detailed long-term review of this whole process and came to the conclusion last year that it should keep the current system in place, with the most accessible way to raise revenue through the licence fee being the mechanism of the television set. That is something we shall have to keep under review, but I do not see that it affects the principle that we are seeking to achieve. It is an appropriate principle in an evolving world where there are no platforms to ensure free-to-air services are precisely that as regards the various mechanisms employed.
Nobody is arguing with the principle as far as I can see, rather we are trying to explore the impact of the change.
To focus in, somewhat, we will have a discussion on the licence fee again because I am proposing a different model. To be crystal clear about this, when this proposed legislation is enacted, what is there to stop a digital television company, or whatever, being set up that basically picks the best programmes from RTE, RTE Two, TG4 and TV3 in terms of sports programmes it has paid nothing for and in terms of rights? What is to prevent it from cherry-picking all the top programmes from all the free-to-air channels and essentially broadcasting them via a broadband link, where people can simply watch? Rather than have a constant flow of programmes, one can choose the programmes one wants.
For example, TV3 may pay a fortune for champions league coverage, or RTE for six nations coverage and there can be a delay of 35 minutes before people watch the programmes on a new channel that has everything on it — there is a must-offer requirement on all the free-to-air channels for anyone who wants to relay that content through a different platform. What is to stop a satellite service being developed in Ireland that picks all the best programmes, but does not bother with the advertising since it does not have to make any return on it? It does not have to pay for the programming in terms of production, purchasing costs and so on. Essentially, our free-to-air broadcasters have to provide all the programming that they have paid for and advertised to pay for, or rely on the licence fee to pay for, as appropriate, when it can be provided over a new platform. This trend has come about because IPTV is developing. It is reality, not something that is coming down the track in ten or 15 years' time. There are approximately 220 million subscribers worldwide to television channels over broadband links. I want some reassurance as to whether this is a valid concern.
That would be illegal. It would be in breach of all the copyright and other laws to prevent people from stealing programming. This is in relation to network providers who are retailing to the Irish public. For someone to take, separately, from one of the Irish free to air programming channels — in the event it could be done, technically — and to cherry-pick and use certain services would be illegal.
There is a must-offer obligation for RTE, for instance, to an IPTV channel.
Does that apply to the deal that RTE currently has with Sky?
Yes, it is non-discriminatory.
People could argue that it is discriminatory because it is exclusive.
We are moving away from exclusivity in this Bill.
It is exclusive for the poor individual who bought his satellite dish in Lidl and put it up on the roof himself. The service he is getting comes from outside the State.
Is the Deputy talking about the Astra satellite? It is not a retail arrangement with the store. As far as I understand, that would not carry RTE.
It cannot do so. I do not want to labour the point.
This is related only to services that are being legally retailed in the Republic of Ireland.
It may not be a valid concern at all, but subsection (10) in amendment No. 138:
I am not sure if "service" refers to an individual programme or the entire service.
"Service" actually means the whole programme schedule. It cannot be selected within that.
Is that defined in the Bill?
I understand that it is.
It is a television service programme.
This is the problem we have.
I suspect I am raising a concern that is not valid, but I ask the Minister to have a look at it again.
I will. These are complex legal areas.
There are many clever people who will try to piggyback on the programmes available on the free-to-air service. Many of these programmes can be high quality and cost a fortune to put together. I have not seen the definition of "any appropriate network" but I suspect it means a web network as well. The Minister has indicated that he often watches programmes on his computer screen after they have been broadcast. I do that as well and I would not like to see a situation where programming that is available live on our free-to-air stations is cherry picked and put up on a website that people can watch whenever they want. While that might not be a bad thing for the consumer, the broadcaster should get some financial reward for it. If a must-offer obligation requires a broadcaster to give all its programming away, then I can see concerns with that.
Section 114(1) states:
The objects of RTÉ are—
(a) to establish, maintain and operate a national television and sound broadcasting service which shall have the character of a public service, be a free-to-air service and be made available, in so far as it is reasonably practicable, to the whole community on the island of Ireland,
That is what we are looking to facilitate in the obligations.
I fully endorse that. The principle of my amendment is satisfied by the ministerial amendment. However, Deputy Coveney has raised issues and we need to take them on board. It all goes back to the problem where something comes through at the last minute. It is very difficult for everybody, including the Minister, to have a good handle on every detail. Before we come back on Report Stage, can the Department provide a note on the issues raised today by Deputy Coveney and me?
Is TV3 covered by this section?
Yes. It is covered in the provision for the television service programme contractor.
Section 114, to which the Minister referred, is fine for RTE, but there is another player that needs to survive in a very difficult market place.
The terms in that are for a free-to-air broadcaster. It is in the commercial interests of broadcasters that are relying on advertising to have as large an audience share as possible. I do not see anything here that——
It depends on the nature of the contract the company has with Sky.
The nature of the contract can be a two-way thing. This is ultimately about content. Having good content is what matters in the end.
I need to raise another question about access. It relates to people who live in apartment blocks and who want to have choice but the developer has signed an exclusivity agreement with NTL and the people involved cannot choose Sky. The Competition Authority has been contacted about this and it has confirmed that it has received about 1,500 formal, written complaints. The authority accepts there is a problem but it does not come within its remit. ComReg was contacted but it claimed it is not responsible. The National Consumer Agency was contacted and is aware of the problem but it is not the agency to deal with it either. The three bodies had a joint meeting and, in their opinion, the only way the problem can be solved is through legislation and a change in the Broadcasting Acts. The change would allow a dish to be put on the roof of apartment buildings so that owners and tenants could get their cable feed from it.
The people involved also met Sky UK, which is very anxious to have access to purpose-built apartment blocks. NTL own the cabling ducts in the majority of purpose-built apartment blocks. Almost all developers sign a contract with a cable television provider at the time the apartment is being built because it is necessary to build a plant room and feed the cable into every apartment before the walls are rendered. These 1,500 people have contacted the Competition Authority because they feel they have a valid complaint. All the arrows are pointing towards this Broadcasting Bill 2008.
I do not know how to resolve this, but the buck stops with the Minister. I cannot see if this matter is being dealt with in the amendments.
It is not being dealt with in the amendments here. I am aware of the issue and I can see the difficulty raised by the Deputy.
I raised it on Second Stage.
This is a complex legal problem because there is an agreement with a residents group. I would have to seek legal advice on whether signing an agreement carries legal implications.
The developer has done the deal. The residents group does not necessarily want to be tied in. The group wants the choice.
The deal is done before there are any residents.
Did the Deputy say that this is a condition of the management contract? Is that deemed to be——
No, it is the developer that has signed the exclusivity agreement with NTL.
The resident buys into this agreement when he or she buys the apartment.
The management company ends up paying for it. The deal is done with the cable company at the building stage. This actually happened to me in Cork a few years ago. I moved into an apartment and I asked whether I could get Sky and I was told absolutely not because the management company had done a deal with Chorus. I said I did not want a Chorus service and that I would rather have a Sky service because I wanted to get X, Y and Z channels. The initial response was that they were sorry but that could not be facilitated. An issue arises. As it happens, at a later stage it was agreed to put a Sky dish on top of the apartment block so those who wanted it could get it, but that was after negotiation.
Negotiation with the developer or the management?
With the management grouping, which was controlled by the developer, as it happens.
Therefore, it depends on the control of the management company.
According to the statement here, which is obviously based on an individual who pursued this matter through all the various authorities, the management company were trying to deal with it and failed.
There is one thought to add, although it is not an answer to the concerns of those who would want Sky. There will be other alternatives evolving as DTT becomes available where there is a set-top box rather than a satellite. This will have an effect. I can understand the point being raised but, because it is a complex legal issue, we would have to consider it in some detail and perhaps seek legal advice rather than giving any immediate commitment. I would have to consider how the input from this Bill would affect that area or whether this is legally an area that could be addressed.
Legislation is also pending on management companies of apartments, which would surely be a vehicle in this regard. The real concern is with the developers getting an exclusive agreement. If legislation is pending on the management companies and what they can and cannot do, it might be a better location to address it.
That sounds like the Minister is passing the buck. This is a deal done.
I know this legislation is imminent.
It is an agreement with a provider that comes under the Minister's remit. At present, people are not allowed to have the choice, which I presume it is the Minister's duty to defend. It is all about competition and about encouraging different players. Here we have a situation where people who want to avail of a particular provider are forced into a situation where they have no choice, although they have gone through all the channels. It would be worth talking to the various bodies, such as the Competition Authority, ComReg and the National Consumer Agency, to ascertain their view. They have obviously done the legal analysis to see where this should go, and they are pointing to the Bill we are now discussing.
We want to know what is the key issue. My sense is it is in regard to the management company and developer arrangements rather than the broadcasting legislation, which may be more specific.
It is the agreement that NTL has been able to have with the developer.
For example, it could be a deal in terms of telecommunications or a range of other services. The fundamental legal issue revolves around management company legislation. I understand legislation on management companies and how they operate is imminent in the Dáil, and that legislation would be a better location in which to address this rather than during broadcasting legislation. While this legislation relates to one of the services, it would be hard to see how we would introduce a whole new section in regard to management companies and how they legally operate, or the developer contract.
It is not about the management company. The Minister is missing the point.NTL has the right to have an exclusive deal with the developer, which impacts negatively on the householders who occupy the block. We have just debated at length provisions the Minister is making to ensure people have access. In this case, they do not have access and they are blocked from having it. It is not about a management company at all.
If that is the case, did the Deputy consider an amendment?
I have a great team but I did not think I was in a position to bring forward an amendment. I raised it because I felt that by raising it on Second Stage, I was putting down a very clear statement of an issue that needed to be resolved. Frankly, my job is to scrutinise what the Minister is doing.
While this is not final as I will have to go away and consider the issue, my instinct is that the pending legislation in regard to management companies, which is imminent, may be the best location to affect a change to the satisfaction of the concerns the Deputy rightly raises.
I do not want to be cynical but I am afraid I am. That sounds to me like the Minister is trying to fob off a problem. If the Minister can come back to us and tell us that this issue should be dealt with in management company legislation, it is not just a question of "should". He should be able to say that there is a section in the Bill dealing with this in a certain way. If the Minister can guarantee that — if it is imminent presumably he can know the provisions in it — and state that there is a specific section dealing with this specific problem, it will certainly clear my doubts but, unless that happens, I will just see it as the Minister fobbing this off.
I said at the start that I would listen to what the Deputy had to say and then go back and seek legal advice. I said I cannot know what that legal analysis will be.
Will Deputy McManus pass on the information she has to the Minister?
Yes. I have outlined the information but I can provide some backup information. I would say the Minister is well aware of it. There is no problem with that.
In terms of the information, the advice the Deputy got was that it should be dealt with in the Broadcasting Bill. Perhaps that could be made available to the Minister and his officials.
I am easy. I do not mind where it is dealt with but we need to have hard evidence it is being dealt with somewhere. That is my concern.
I move amendment No. 132:
In page 84, subsection (3), line 3, to delete "service" and substitute "television service".
I move amendment No. 133:
In page 84, subsection (7), lines 28 and 29, to delete "the appropriate network," and substitute the following:
"specified appropriate networks (whether analogue or digital) maintained by the appropriate network provider,".
I move amendment No. 135:
In page 84, subsection (7), line 31, to delete "community" and substitute "community or community of interest".
I move amendment No. 136:
In page 84, subsection (8), line 36, to delete "(6)” and substitute “(7)”.
I move amendment No. 137: In page 84, subsection (9), line 39, to delete "(6)” and substitute “(7)”.
I move amendment No. 138:
In page 84, between lines 43 and 44, to insert the following subsections:
(12) Arrangements entered into undersubsection (11) shall not result in an additional charge on any subscriber to a satellite television service by reason of the making available to that subscriber of any must-offer service by way of the satellite television service.
(13) Subject to the requirements of any contract made undersection 74 any arrangement entered into under subsection (11) shall ensure that the electronic programme guide by which members of the public access the satellite television service shall prioritise the positioning of the must-offer service for the purposes of that satellite television service and for the purposes of any other satellite television service which also utilises the same electronic programme guide for the purposes of making a satellite television service available for reception in an intelligible form by members of the public in the whole of or in part of the State.”.
The Minister has agreed to consider this issue to ensure some of the issues we raised are addressed.
He might give us a report on it.
I move amendment No. 139:
In page 85, lines 5 and 6, to delete subsection (12) and substitute the following:
"(12) In this section—
"must-offer service" means a free-to-air television service provided for the time being by RTÉ, TG4 and the free-to-air service provided undersection 70 by the television service programme contractor;
"re-transmission" means near-simultaneous, unaltered and unabridged transmission;
"satellite television service" means a service which consists in or involves the distribution or transmission of television broadcasting services from a satellite, such services then offered to the public with the intention that such services be used by a significant number of the persons in the whole or part of the State by whom the broadcasts are received in an intelligible form as their principal means of receiving television programmes.".
I move amendment No. 141:
In page 86, subsection (1)(d), line 1, to delete “as defined in section 89” and substitute “(as defined in section 89)”.
I move amendment No. 143:
In page 87, subsection (2), line 7, after "of" to insert "the board of".
I move amendment No. 144:
In page 87, lines 17 and 18, to delete subsection (6).
While I must withdraw the amendment, it seems a pity there are these arbitrary time restrictions that are not based on anything more than a kind of an instinct that people should not be let stay in position too long. It is in the ministerial gift in any case to make these appointments, so it is a pity we have these unnecessary restrictions on top of that.
I move amendment No. 145:
In page 88, subsection (12), line 38, to delete "expressly".
I move amendment No. 146:
In page 89, subsection (3), line 30, after "of" to insert "the board of".
I move amendment No. 147:
In page 89, subsection (5), line 38, after "of" to insert "the board of".
I move amendment No. 148:
In page 89, subsection (5), line 39, after "of" to insert "the board of".
I move amendment No. 149:
In page 90, subsection (8), line 12, after "of" to insert "the board of".
I move amendment No. 150:
In page 90, subsection (10), line 33, after "of" to insert "the board of".
I move amendment No. 151:
In page 90, subsection (10), line 36, after "of" to insert "the board of".
I move amendment No. 152:
In page 90, subsection (10), line 38, after "of" to insert "the board of".
I move amendment No. 153:
In page 90, subsection (10), line 41, after "of" to insert "the board of".
I move amendment No. 154:
In page 91, subsection (12), line 3, after "of" to insert "the board of".
I move amendment No. 155:
In page 91, subsection (12), line 6, after "of" to insert "the board of".
I move amendment No. 156:
In page 91, subsection (12), line 9, after "of" to insert "the board of".
I move amendment No. 157:
In page 91, subsection (12), line 12, after "of" to insert "the board of".
I move amendment No. 158:
In page 91, subsection (1)(b), line 40, to delete “in”.
I move amendment No. 159:
In page 92, subsection (2)(b), line 5, to delete “in”.
I move amendment No. 160:
In page 92, subsection (2), line 15, to delete "in".
I move amendment No. 161:
In page 92, subsection (4), line 23, to delete "and" and substitute "or".
I move amendment No. 162:
In page 92, subsection (4), line 24, after "of" to insert "the board of".
I move amendment No. 163:
In page 92, subsection (5), line 29, after "of" to insert "the board of".
I move amendment No. 164:
In page 93, between lines 11 and 12, to insert the following:
"(e) ensure that the corporation acts responsibly in commercial dealings and in a manner that recognises the competitive market for broadcasting activities in Ireland and does not abuse any position of market dominance.”.
This amendment proposes the insertion of a new paragraph (e) in the section setting out the duties of the board of RTE. Paragraphs (a) to (d), inclusive, provide that the board should represent the interests of viewers and listeners, ensure the corporation performs efficiently and effectively, provide news and current affairs programming that is accurate and impartial, and ensure the independence of the corporation is safeguarded. These are sensible requirements.
My amendment seeks to address concerns as to how RTE relates to other players in the marketplace. This is a reasonable proposal and not an attempt to make life difficult for RTE. It merely provides that the board be cognisant of the fact that there are other players in the market which must compete with RTE, the latter being, for various reasons, the dominant player and likely to remain so into the future so long as it continues to be run well. My main concern in proposing this amendment arises in the context of declining advertising revenues which may lead to a situation where it becomes increasingly difficult for RTE's competitors to survive. It would be an unhealthy situation, for example, to have only one Irish broadcaster providing news and current affairs programming.
This amendment proposes that one of the duties of every member of the board will be to consider how RTE's decisions impact on the marketplace and to ensure those decisions do not deliberately abuse RTE's position of market dominance. Such abuse does not occur in general but a provision in this regard should be included in the legislation.
This amendment is worthy of support. In any area of public provision in which there is a dominant player, whether in regard to public utilities, public broadcasting and so on, there is a particular responsibility on that player to ensure there is fair competition in terms of the pursuit of revenue. This is not a question of being critical of any provider. It is simply a matter of establishing a requirement to ensure competitiveness is protected into the future.
I hope the Minister will accept the reasoning behind Deputy Coveney's amendment. I am sure he is aware of the risks that attach in times of economic downturn. Advertising revenues are already plummeting. Although the signs may have been there for some time, as with the economy in general, the impact has been severe and abrupt. This may lead to a change in the approach to bringing in revenue. The amendment does not encroach on any other provisions and it is clear and definitive in its recognition of the special standing enjoyed by a dominant player in any market and that the obligations of those players should be defined by best practice.
There is no debate in terms of whether RTE is in a dominant position in the Irish market. That is undeniable. RTE is the price setter in terms of television advertising, although not so much in radio because there is more competition in that market. My main concern in this amendment is the television market. The provision will force the board to consider this issue when making decisions and when plotting a strategy for the year ahead. That would be a healthy development for RTE.
The Minister undoubtedly will make the case that this issue is covered by other provisions of the Bill in that RTE is obliged to be cognisant of the fact that it operates within a marketplace. However, this section deals specifically with the duties of the board. There should be a crystal clear acknowledgement of the favourable position of RTE within the marketplace and that this brings with it certain responsibilities towards the smaller players that are affected by decisions RTE makes in regard to advertising revenue and a range of other issues. This must be factored in when those decisions are being made.
I agree with the Deputies regarding the benefits that arise from the existence of choice and competition in the free-to-air broadcasting market. Broadcasting has benefited from the entrance of TV3 which provides an important and valuable service to the public. This is something we would wish to support. We must recognise also that these are difficult times for any broadcaster, especially one such as TV3 which is dependent on advertising for its revenue and which is competing against a player, RTE, which is a much larger organisation as well as a plethora of international channels.
Therefore, the sentiment in terms of protecting and supporting the commercial viability of independent broadcasting companies is sound. This Bill has been a long time in gestation and its complexity is apparent from the number of amendments to be worked through.
One reason for the Bill's length of gestation, size and complexity is the considerable influence on this process of discussions with the European Commission regarding certain competition concerns that had been raised and our determination, in conjunction with the Commission, to ensure we encouraged a competitive market.
While I will not list all the numerous provisions that so do, section 95 deals with the code of conduct. In particular, section 95(2) states:
A corporation shall, as soon as may be, draw up a code of conduct in respect of controls on interests and ethical behaviour to apply to such categories of contractors for services as the corporation may specify before engagement.
In addition, section 100 deals with sectoral impact assessment and section 100(1) requires that the authority:
shall, within 3 months of receiving a written request for advice from the Minister in respect of the sectoral impact of a proposal under this Part, prepare and submit such advice to the Minister.
Section 100(2) states:
The Authority, in advising the Minister on the sectoral impact of a proposal under this Part, shall consider the following matters—
which include the extent to which the proposal affects the availability, choice and accessibility of services for audiences. While I will not read out this provision in full, suffice it to say that such sections, and the general intent of the Bill elsewhere, are designed to address precisely what the Deputy is proposing and, therefore, I cannot accept his amendment.
With respect, the Minister is missing my point. I understand and agree with him that sections of the Bill deal with a potential abuse of a position of market dominance. People can make a complaint or can seek advice from the Minister. My amendment attempts to ensure that when RTE's board makes decisions, it factors in this issue to prevent it from arising in the first place. The Minister's provisions will be complemented by what this amendment attempts to do and there is no contradiction or repetition. The wording may be improved slightly because essentially, I just set it down, although a legal draftsperson looked over it. However, it is not unreasonable that when making decisions, one duty of board members should be to factor in the impact of those decisions on a competitive marketplace in which RTE operates. I do not understand the reason the Minister does not wish to accept this. If his points regarding other parts of the Bill are true, surely this amendment complements them. In addition, it will subsequently save time in respect of complaints and potential advice the Department may be obliged to give regarding players in the marketplace and so on. I am unsure whether the Minister heard my last remark as he has been taking advice.
One of my ears works one way, while the other works the other way.
Perhaps that comes with being a Minister, but I would find that difficult.
As long as the Minister's mouth does not work the same way.
It starts to become a difficulty when one has two faces.
Or two parties.
My point is this amendment complements what the Minister is trying to achieve. I do not understand the reason the Minister does not wish to accept what is essentially merely a requirement that the board should take note of this issue when making decisions. This is all I seek and it complements the Minister's subsequent provisions. This amendment does not seek anything with which the Minister does not already agree. I am at a loss to understand the reason he does not wish to accept it.
I will not accept it because I do not wish to reopen a process that took three years of careful consultation, as well as dialogue with the European Commission, to achieve the Deputy's objective by including provisions in what I consider to be the right places, namely, in the code of conduct, the impact assessment and the core duties that are set out effectively in the Bill. Reopening this issue and going——
When members put together the codes of conduct, it should be their duty to take this issue into account in the same manner in which they are obliged to take into account their viewers and questions of balance.
I want them to work to that code, which is set out clearly and does exactly what the Deputy proposes with regard to giving a direction towards the provision of a competitive market. While I understand and appreciate the Deputy's point, I cannot accept the amendment.
The Minister must explain this point to me because the amendment's contents are completely in line with the European Commission's principles of fair competition. The amendment reinforces, rather than interferes with, something members are trying to encourage. Many changes have taken place pertaining to breaking down cartels and agreements on price structuring and so on. The environment has changed when compared to how things were done in the past. However, there are still dangers and risks to fair competition and I would have thought the Minister would be applauded for accepting such an amendment. It certainly is not contrary to principles that already have been espoused.
I will provide an example of the reasons one should not reopen this issue, which has been through a fine toothcomb. First, one cannot assume market dominance, as the proposed wording does.
The amendment states "does not abuse any position of market dominance" and does not assume market dominance. I cannot understand why the Minister is trying to find reasons to turn this down. This comes back to the Minister's previous assertion that he would prefer if people were to promote measures, rather than shooting them down.
In this case, this is a sensitive and important issue and much consideration and thought has gone into getting the wording, message and direction in the Bill right. While I can understand the amendment's intent and support its objectives, I will not accept the amendment.
The Minister is in a somewhat weak position, given that he tabled 80% of the amendments. It is peculiar of him to state that members must not mess around with the Bill because it has been so long in gestation.
Moreover, the Minister has been through it with a fine toothcomb.
Why have so many ministerial amendments been tabled? I have never seen so many ministerial amendments to a Bill.
In this process, I prefer to work through a Bill. While the vast majority of the aforementioned amendments are technical in nature, others are part of a process and a Bill benefits from continuing to change. On this issue, however, wording went back and forth between the Department and the Commission for three years to try to achieve a certain legislative position on which the Commission could sign off, having met its concerns regarding competition. Consequently, I do not wish to reopen that process by accepting the amendment.
My final point in this regard is that on becoming a board member of RTE, the first step a person will take is to study the legislation concerning the duty of board members in respect of determining decisions and so on. It will upset neither the Commission nor anyone else, including RTE, if one of the board's duties is to ensure RTE does not abuse any position of market dominance. This would exclude areas in which RTE does not have dominance such as radio. However, in those areas in which it has such a position, the amendment would ensure that board members would not abuse it when making decisions. I will press this amendment and probably will reintroduce it on Report Stage. Of all the amendments that have been turned down, I fail to understand the reason the Minister has done so in this case.
I move amendment No. 165:
In page 93, subsection (1), line 12, to delete "A board" and substitute "The board".
I move amendment No. 166:
In page 93, subsection (2), line 15, to delete "a board" and substitute "the board".
I move amendment No. 167:
In page 93, subsection (3), line 23, to delete "a board" and substitute "the board".
I move amendment No. 168:
In page 93, between lines 33 and 34, to insert the following subsections:
"(7) Subject to any rule made undersubsection (3) a member of the board of a corporation shall be regarded as present at a meeting of the board where he or she communicates by means of a telecommunications service with the other members of the board present at the meeting.
(8) The board of a corporation may delegate any of its functions to a subcommittee of the board of the corporation subject to such conditions as the board of the corporation considers appropriate.".
I move amendment No. 169:
In page 97, subsection (2)(iv), line 30, to delete "a corporation" and substitute "the corporation".
I move amendment No. 170:
In page 98, subsection (1), line 12, to delete "in any" and substitute ", in any contract, agreement or arrangement".
I move amendment No. 171:
In page 99, lines 17 and 18, to delete subsection (7).
I apologise, but I mentioned that I would need to leave by 3 p.m.
When we reach section 98, we can get into the heavy lifting. A few minutes could get us through to that stage.
I will not delay the Minister with this amendment for long.
It is fine.
My amendment results from a genuine concern expressed to me by a person in RTE. On page 99, section 96(7) states: "A member of the board of a corporation appointed undersubsection (3) may not act as chairperson of its audience council.” This provision includes RTE. It is a sensible suggestion that the audience council would be taken more seriously were its chair on the board of RTE. While that is not a requirement, preventing a member of the board of the corporation from being the chair of the audience council would not make sense were the person interested in the matter. Allowing it would ensure that the deliberations of the council would be taken seriously at board level.
When I asked a number of people about how the audience council system worked in RTE, fears were expressed that the council is not taken as seriously as it should be. My amendment would ensure that the deliberations of the council would be taken seriously. This makes sense because what RTE does is all about the audience. There are no politics in this. Rather, it owes to my discussions on how the council works, the types of personality interested in the issue and how it relates to the RTE board.
There is no politics in any of these. My only concern is that the audience council might be more of a creature of the board were the former's chairperson, who would have a strong role, a board member. This would weaken the independence of the audience council.
The other argument is that the board does not take the audience council's deliberations seriously. The board member might not attend the council's meetings. We should not prohibit a board member with a particular interest in the work of the audience council from becoming its chair if he or she is accepted as being suitable.
RTE is mature enough to decide whether it would be appropriate to do so. We are going too far in deciding who can be chair. Given that the audience council may become influential in board decisions, it should be taken seriously. It was suggested to me that the deletion of the subsection would help the process.
I will take the Deputy's comments into account. My instinct is that the council and the board should be strong and willing to be forthright in their opinions. How to achieve this should be considered. It is not a crucial factor, but it is my concern.
I will withdraw the amendment and ask the Minister to consider it before Report Stage.
I move amendment No. 172:
In page 100, subsection (16), line 9, to delete "subsection" and substitute "section".
I move amendment No. 173:
In page 100, subsection (2), line 30, after "and" to insert "allowances for".
The Minister wants to get away. I thank him and his officials.