Court orders PBS to broadcast MLP spots

A judge in the Civil Court yesterday decided two cases over the broadcast of information spots on the European Union and ordered the Public Broadcasting Services to air spots prepared by the Malta Labour Party.

Mr Justice Joseph R. Micallef dismissed a writ filed by PBS Limited against the Broadcasting Authority and upheld another filed by the MLP against the BA and PBS.

PBS filed a writ against the BA requesting the court to declare that the authority's June 6 order went beyond its powers and should be declared null and void.

The authority had upheld a complaint filed by the MLP about the spots broadcast by MIC on PBS.

The authority had ordered PBS to allocate air time to the MLP to broadcast its spots on the alternatives to EU membership.

The spots had to be between five and 60 seconds long and were to be broadcast by PBS in the time already allocated for advertising.

PBS claimed that the authority's decision was in violation of its rights because it was being unjustly forced to give air time to a political party when such time had been reserved by the television station for advertising.

Thus PBS would lose income from advertising when it only had a limited period in which such adverts could be aired.

PBS added that it would be seriously prejudiced by the authority's decision because the authority had ordered that the MLP's spots be aired free of charge.

On the other hand, MIC was paying for the spots it was broadcasting on TVM.

PBS concluded its writ by requesting the court to declare that the actions on the part of the authority were ultra vires and seriously prejudicial to PBS. It further requested the court to declare the decision to be null and void.

PBS also requested a declaration that the constitution did not distinguish between public and private television stations or between public and private broadcasting.

But the authority pleaded that the courts did not have jurisdiction to hear and decide the case.

BA said it had discretionary powers to decide upon complaints filed before it and that it had exercised its discretion in this case on the basis of the constitution and the Broadcasting Act in terms of normal practice.

The MLP was called into the suit and Mr Justice Micallef yesterday handed down a judgment dismissing the first plea filed by the authority and deciding that it had jurisdiction to hear and examine the case.

The authority, said the court, was not above the law which provided that the courts were empowered to exercise jurisdiction to establish whether a person or authority had exercised its discretionary powers in accordance with law.

Mr Justice Micallef pointed out that in terms of law the courts were empowered to investigate whether an administrative decision had been taken validly, or whether it had been taken in accordance with the constitution.

The court could also examine whether the administrative decision had been taken within the limits of the law empowering such decision.

When examining the merits of the case the court noted that the authority had considerable discretion in performing its function of acting as a watchdog over all aspects of broadcasting.

Although this discretion was wide, the court was empowered to establish whether the authority was fulfilling its legal functions.

When referring to the relationship between the authority and PBS the court noted that radical changes had been affected in broadcasting.

The current law enshrined the principle of freedom of expression and the independence of public broadcasting from government interference insofar as this concerned editorial responsibility.

This, coupled with pluralism in broadcasting, showed that the legal position had radically changed from one of dependence in public broadcasting to statutory autonomy.

However, the authority was still empowered to insist that all broadcasters observed their legal obligations, and the authority was also empowered to ensure that these duties were enforced.

The burden of observing these duties now lay on the broadcaster, who was responsible towards the public in general.

The court then proceeded to examine the nature of the spots broadcast by MIC on PBS. These spots, said the court, did not constitute advertising as specified by law.

PBS had claimed that the spots were factual and not controversial, and that therefore no remedy ought to have been provided by the authority in favour of the MLP.

However, the court noted that as the choice on EU membership had not yet been made, then there was no doubt that the aim of the MIC spots was that of making the viewer think about this choice.

The MIC spots showed in a factual manner what effects EU membership would have on different aspects of local life.

However, it was a notorious fact that this was a politically controversial matter in Malta, for one political party was contrary to membership while the other was totally in favour.

The MIC spots did not represent these two opposing views, and a remedy was required.

The law imposed on the authority the obligation to ensure impartiality and balance in broadcasting on issues of current public policy, even if the issues were not controversial.

The authority was also empowered to implement schemes of political broadcasting in a justified and reasonable manner in a democratic society.

On the basis of the authority's legal duties the court concluded that the authority's decision had not been ultra vires its powers.

The court however concluded that PBS's request for a declaration that the constitution did not distinguish between public and private broadcasting was justified.

The court noted that the constitution made no distinction between the two but the Broadcasting Act did, for it provided that PBS, as the company responsible for public broadcasting, had to observe the fundamental obligation of impartiality as specified in the constitution.

The Broadcasting Act also distinguished between the two types of broadcasting in that PBS benefited from the licence fees paid by the general public, while the private stations did not.

Mr Justice Micallef concluded his judgment by declaring that the decision taken by the authority on June 6 was proportionate and within the parameters of the Constitution and the law.

This decision was therefore binding upon PBS.

In a second judgment, Mr Justice Micallef upheld the writ filed by the MLP limitedly against PBS and ordered the latter company to broadcast the MLP's spots in terms of the authority's decision.

The authority was ordered to ensure that its directives were obeyed.

The MLP had requested the court to declare that the authority and PBS were not fulfilling their legal duties in terms of law for the PBS had failed to implement the authority's decision of June 6.

The MLP also requested the court to declare that defendants were allowing imbalance and partiality in broadcasting, and to order them to broadcast the MLP's spots on PBS.

In its judgment the court noted that the authority had continued to insist with PBS that the MLP's spots be aired.

On its part, however, PBS had continuously refused to air these spots and that it had in effect allowed an imbalance in broadcasting against the MLP.

This was in violation of the company's obligations in terms of law.

The court concluded its judgment by finding that PBS was to air the MLP's spots, and it ordered PBS to implement the decision of the authority of June 6.

Dr Tonio Azzopardi was counsel to PBS, Prof. Ian Refalo was counsel to the BA while Dr Paul Lia and Dr Joseph Brincat were counsel to the MLP.

Decision 'should embarrass PBS, PM'

The Labour Party said yesterday the court decision confirmed how right it had been to insist on having spots about its policy of partnership being broadcast on Public Broadcasting Services as a remedy to the spots of the Malta-EU Information Centre.

The MLP said the court's decision should embarrass the chairman and chief executive of PBS, Anthony Tabone and Andrew Psaila, who for more than two months had denied the MLP its rights.

The same decisions should also embarrass the prime minister who had blessed what now resulted to be a breach of the constitution on the part of PBS, the MLP said.

The MLP said this case also showed how right it had been to insist on the resignation of the PBS board.