The Broadcasting Act 2009 (the “Act”), enacted on 12 July 2009, has revised the law relating to broadcasting services, television licences, and the regulation and provision of telecommunications services. The main aims of the Act are:
- to establish a broadcasting content regulator in the form of the Broadcasting Authority of Ireland (the “Authority”), on a day to be appointed by Ministerial Order, with the dissolution of the Broadcasting Commission of Ireland (“BCI”) on the date of the Authority’s establishment;
- to revise the statutory basis for the television licence; and
- to provide for the implementation of Digital Terrestrial Television (“DTT”) and the broadcasting of content in digital form.
In keeping with the Government’s strategy to encourage the uptake and distribution of content by digital means, the Act makes provision for review of analogue transmission on a regular basis with a view to switching to DTT. This analogue switch-off and switchover to DTT will depend on the availability of multiplexes – electronic television systems combining programme material and related other data in a digital form transmitted via wireless telegraphy for reception, directly or indirectly, by the general public.
In encouraging the digital transmission of content, the Act anticipates network providers’ concerns in providing that “appropriate network providers” (those providing an electronic communications network used for broadcasting content to the public), shall not be regarded as the publisher of content, shall not be liable for any infringement of copyright or related rights, and shall not be under any duty to ensure that the material so transmitted on its network complies with the terms and conditions of the content provision contract between the Authority and the broadcaster or the duties, codes or rules that are applicable to broadcasters by virtue of the Act.
In Part 9, Section 140(1) defines the “television set” to include ‘any electronic apparatus capable of receiving and exhibiting television broadcasting services broadcast for general reception (whether or not its use for that purpose is dependent on the use of anything else in conjunction with it) and any software or assembly comprising such apparatus and other apparatus.’ The Minister for Communications, Energy and Natural Resources has previously expressed the opinion that devices capable of receiving on-demand digital content (non-linear audiovisual services) over the Internet and through mobile phone devices are intended to be excluded from the requirement of holding a television licence.
The Act is a welcome development in preparing for advancements in the methods and manner in which content is and will be broadcast. The Act attempts to anticipate concerns that may arise from those providing content distribution channels and networks while putting appropriate procedures in place for the regular review of analogue transmission, indicative of a willingness to encourage the deployment of DTT. Finally, the establishment of the Authority attempts to bring increased transparency in the governance of broadcasting in Ireland, thereby promoting legitimacy, accountability, and fair procedures in the provision of ‘high-quality, diverse and innovative programming.’