The impact of a recent court ruling on the Broadcasting Authority’s role in ensuring impartiality in the broadcast media could extend beyond party-owned stations to those run by the Church or other civic organisations, according to a former Broadcasting Authority CEO.
The ruling was made in an appeal against a case instituted by the Nationalist Party which found that the Broadcasting Authority and PBS had failed to ensure impartiality in two separate incidents. The original court sentence had been decided in the PN’s favour last July, with the Constitutional Court confirming the decision last week.
In their ruling, judges Mark Chetcuti, Giannino Caruana Demajo and Anthony Ellul said the obligation towards impartiality was “not limited to a situation where a monopoly is present [and] applies in all broadcast services in Malta, both public and private”.
Pierre Cassar, who was the BA CEO between 2009 and 2016, told Times of Malta that impartiality does not only refer to partisan balance but also to a broader range of social and political issues.
Malta’s constitution binds the Broadcasting Authority to ensure impartiality “in respect of matters of political or industrial controversy or relating to current public policy”.
Cassar believes the judgment is also interesting in light of a current constitutional case, opened by Lovin Malta and its former CEO Christian Peregin. They want to annul a proviso in the Broadcasting Act that allows the authority to “consider the general output” across all licensed stations when determining impartiality, rather than enforcing impartiality within each individual station.
“This could mean that if a Church-run radio station was discussing the topic of abortion, it would need to introduce a pro-choice representative as part of the discussion, just to cite one example,” he said.
Reflecting on the recent ruling, Cassar said “the Broadcasting Authority is doing nothing wrong according to law but the court is telling the authority to change its policy. This may require an update to the law itself”.
Whether or not this would impact the future of political party stations is less clear, according to Cassar.
“I don’t know whether there is scope for parties to keep their stations if they have to include voices from opposing camps in their own programming,” he said.
Lawyer and former PN minister Francis Zammit Dimech, who authored a recent book on public broadcasting in Malta, agrees that the ruling “could be a consideration” in ongoing legal cases, although “if the Broadcasting Act proviso is cancelled, this would not mean the closure of political party stations”.
The solution is political and goes beyond legal issues- Lawyer and former PN minister Francis Zammit Dimech
Zammit Dimech warned that it is “unwise to resolve issues only through a legal challenge”, arguing that a more holistic discussion needs to take place.
“If we want to be realistic, the solution is political and goes beyond legal issues, although the legal and constitutional issues are also of utmost importance. We need reform within PBS to create a public, rather than a national broadcaster. Currently the PBS board is appointed by the government and it is unclear whether it even has an editorial board or what its direction is,” he said.
Zammit Dimech pointed to the evolution that other public broadcasters underwent as an example of how Malta’s public broadcasting can change.
“RAI in Italy faced a similar challenge but changed its governance structures and its shareholding is now public,” he said.
Previous challenge to the law
This is not the first time that the Broadcasting Act’s interpretation of the constitution has been challenged.
Zammit Dimech pointed to a “ground-breaking judgment” in a 1996 case brought by then-AD members Wenzu Mintoff and Saviour Balzan against the Broadcasting Authority in which they argued that a provision in the Broadcasting Act discriminated against parties not represented in parliament, asking for the article to be declared null and void.
Although the court upheld their complaint, it did not remove the article, arguing that the decision over whether parties not represented in parliament should participate in a programme should be at the Broadcasting Authority’s discretion.
How did the relevant parties react to the ruling?
When asked what impact the ruling will have on its work, the Broadcasting Authority said it was still analysing the court decision to see how it would impact its operations.
Asked what the ruling would mean for the future of NET TV and radio and whether it would change their work in any way, a NET spokesperson said: “The country needs a true public broadcaster which truly allows all opinions to be known to the public. Until then, NET is a vital part of our democracy. NET will always comply with the law.”
A PL spokesperson said that neither ONE nor PL were party to the court proceedings and were, therefore, not impacted by the case. The spokesperson argued that “our courts are not bound by the doctrine of precedent”, adding that the statement being referred to is an “interpretation” and “not in the decisive part of the judgment”.
“The Labour Party remains committed to strengthening the media owned by it as it is a fundamental right in a democratic society that a political party should have the tools available to transmit its political message,” the spokesperson said.