requests, for reasons specified by him or her, the Compliance Committee to afford to him or her an opportunity to comment on the complaint, the Compliance Committee shall, having considered the reasons so specified, afford to the person 7 days or such further period as the Committee allows to comment on the complaint if, but only if, they are satisfied that, as appropriate— (i) an interest of the person referred to in paragraph (a), being an interest which the Compliance Committee consider relevant to the person’s employment by the broadcaster concerned, or (ii) the prospects of the person referred to in paragraph (b) obtaining further commissions in respect of programmes from the broadcaster concerned, may, because of the complaint, be adversely affected.
\n
(6)When the Compliance Committee proposes to consider a complaint that a broadcaster failed to comply with the provision of a broadcasting code providing for the matters referred to in section 42
\n
(2)(g) or (h) the Compliance Committee shall afford the relevant advertiser 7 days or such further period as the Committee allows to comment on the relevant advertisement.
\n
(7)As soon as may be after they decide on a complaint made under this section, the Compliance Committee shall send to— (a) the person who made the complaint, and (b) the broadcaster concerned, a statement in writing of their decision, including the reasons for their decision.
\n
(8)In case the Compliance Committee decide on a complaint that a broadcaster failed to comply with the provision of a broadcasting code providing for the matters referred to in section 42
\n
(2)(g) or (h), as soon as may be after their decision, the Compliance Committee shall (in addition to complying with the requirements of subsection (7)) send to the person with whom the broadcaster concerned agreed to broadcast the relevant advertisement (if he or she is not the person who made the complaint) a statement in writing of their decision.
\n
(9)The consideration by the Compliance Committee of a complaint made to them under this section may be carried out by the Compliance Committee in private.
\n
(10)Unless they consider it inappropriate to do so, the Compliance Committee shall, as soon as may be after the making of the decision, publish particulars of their decision on a complaint in such manner as they consider suitable and, without prejudice to subsection (11), where they consider that the publication should be by the broadcaster concerned, or should include publication by the broadcaster concerned, the particulars shall be published by the broadcaster concerned in such manner as shall be agreed between the Compliance Committee and the broadcaster concerned.
\n
(11)Without prejudice to subsection (10), the broadcaster concerned shall, unless the Compliance Committee consider it inappropriate for the broadcaster to do so, broadcast the Compliance Committee’s decision on every complaint considered by the Compliance Committee in which the Compliance Committee found in favour, in whole or in part, of the person who made the complaint, within 21 days of such decision and at a time and in a manner corresponding to that in which the broadcast to which the complaint relates took place.
\n
(12)As regards proceedings under this section, the Compliance Committee does not have any power to award to any party costs or expenses.
\n
(13)Subsection (1) does not apply to a complaint which, in the opinion of the Compliance Committee, is not made in good faith or is frivolous or vexatious, nor, unless the Compliance Committee consider that there are special reasons for investigating the complaint (which reasons shall be stated by the Compliance Committee when giving their decision), does that subsection apply to a complaint which is withdrawn.
\n
(14)Where a matter has been the subject of multiple complaints made under— (a) this section, or (b) in respect of a broadcast transmitted from another jurisdiction targeted at audiences in the State, the Compliance Committee may review the matter concerned and, as it considers appropriate, report to the Minister and to the relevant public body in such form and manner as the Committee thinks fit the findings arising out of such review.
\n
(15)The Compliance Committee shall endeavour to decide upon a complaint as soon as practicable after such a complaint is received.
\n
(16)The Compliance Committee may, where it deems it appropriate, hold an oral hearing in respect of proceedings under this section.
\n
(17)The Compliance Committee may deem a complaint made to a broadcaster within the time periods specified in section 47
\n
(2)as having been made within the time periods specified in subsection (2).
\n
Right of reply.
\n
49.— (1) In this section— “requester” means a person who makes a request under subsection (6); “right of reply” means the broadcast by a broadcaster of a statement prepared in accordance with a scheme; “scheme” means a scheme under subsection (3).
\n
(2)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.
\n
(3)The Authority shall prepare, within 6 months of the establishment day, following a period of public consultation, a scheme for the exercise of the right of reply.
\n
(4)A scheme shall set out the procedures to be followed in the exercise of the right of reply.
\n
(5)In preparing a scheme the Authority shall ensure that— (a) a right of reply shall be broadcast— (i) within a reasonable time period subsequent to the request for a right of reply being made, and (ii) at a time and in a manner appropriate to the broadcast to which the request refers, and (b) a right of reply shall— (i) state to what extent the information contained in the broadcast under subsection (2) is incorrect or misleading, and (ii) be limited to factual assertions necessary to rectify an incomplete or otherwise distorting assertion.
\n
(6)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— (a) stating that the request is made under this section, (b) containing sufficient particulars to enable the identification by the taking of reasonable steps of the part of the broadcast which asserted incorrect facts impugning the honour or reputation of the requester, and (c) if the requester requires the right of reply to be given in a particular form or manner (being a form or manner which is in accordance with the terms of any scheme) specifying the form or manner of the right of reply.
\n
(7)A request for a right of reply shall be made not later than 21 days after the making of the broadcast referred to in the request, unless otherwise agreed between the requester and the broadcaster concerned.
\n
(8)The broadcaster shall, as soon as may be but not later than 10 days after the receipt of a request under subsection (6)— (a) decide whether to grant or refuse the request, and (b) cause notice in writing of the decision to be given to the requester.
\n
(9)Where notice of a decision under subsection (8) is not given to the requester by the expiration of the period specified for that purpose a decision refusing to grant the request under subsection (6) shall be deemed to have been made upon such expiration by the broadcaster concerned.
\n
(10)A broadcaster shall give due and adequate consideration to any request under subsection (6), which in the opinion of the broadcaster has been made in good faith and is not of a frivolous or vexatious nature, by a member of the public in respect of the broadcasting service provided by the broadcaster and shall keep due and proper records for a period of 2 years of all such requests and of any reply made to them or of any action taken on foot of them.
\n
(11)A broadcaster shall, if directed by the Compliance Committee, make available for inspection by the Compliance Committee all records kept by him or her under subsection (10).
\n
(12)No charge shall be made for the processing of a request under subsection (6) by a broadcaster.
\n
(13)In a defamation action the granting of a request for a right of reply under this section by a defendant in respect of a statement to which the action relates— (a) does not constitute an express or implied admission of liability by that defendant, and (b) is not relevant to the determination of liability in the action.
\n
(14)In a defamation action the defendant may give evidence in mitigation of damage, that he or she granted or offered to grant a right of reply under this section to the plaintiff in respect of the statement to which the action relates, either— (a) before the bringing of the action, or (b) as soon as practicable thereafter, in circumstances where the action was commenced before there was an opportunity to grant or offer to grant a right of reply.
\n
(15)In a defamation action, a defendant who intends to give evidence to which subsection (14) applies shall, at the time of the filing or delivery of the defence to the action, notify the plaintiff in writing of his or her intention to give such evidence.
\n
(16)Evidence of the granting of a right of reply under this section by a broadcaster in respect of a statement to which the action relates is not admissible in any civil proceedings as evidence of liability of the defendant.
\n
(17)Subject to this section, the Compliance Committee, on application to them in that behalf, in writing, by a requester, shall endeavor to within 21 days after the receipt of such an application, review a decision to refuse by a broadcaster under subsection (8) or (9) and as they consider appropriate— (a) affirm the decision, or (b) annul the decision and require the broadcaster concerned to broadcast the Compliance Committee’s decision including any correction of inaccurate facts or information relating to the individual concerned within 7 days of such decision being communicated to the broadcaster and at a time and in a manner corresponding to that in which the broadcast to which the request relates took place, in accordance with this section.
\n
(18)An application under subsection (17) shall be made to the Compliance Committee not more than 21 days after receipt of a decision to refuse under subsection (8) or (9).
\n
(19)Where the Compliance Committee propose to investigate an application made under subsection (17), the Compliance Committee shall afford to the broadcaster to whom the application relates (hereafter in this section referred to as the “broadcaster concerned”) an opportunity to comment on the application.
\n
(20)As soon as may be after they decide on an application made under subsection (17), the Compliance Committee shall send to— (a) the person who made the application, and (b) the broadcaster concerned, a statement in writing of their decision, including the reasons for their decision.
\n
(21)The Compliance Committee may reject any request for a right of reply where it is of the opinion inter alia that— (a) the request is of a frivolous or vexatious nature or was not made in good faith, (b) a right of reply is manifestly unnecessary owing to the minor significance of the error in the broadcast complained of, (c) the proposed right of reply cites untrue information or assertions, (d) the proposed right of reply is a personal opinion, (e) the proposed right of reply is an assessment or warning against the future conduct of a person, (f) satisfaction of the proposed right of reply would involve a punishable act, (g) satisfaction of the proposed right of reply would be harmful or offensive, (h) satisfaction of the proposed right of reply would render the broadcaster liable to civil law proceedings, (i) satisfaction of the proposed right of reply would breach a broadcaster’s statutory obligation, (j) satisfaction of the proposed right of reply would breach the terms of a broadcaster’s contract under
\n
Part 6
\n
with the Authority, (k) the person who was injured by the contested information has no legally justifiable actual interest in the publication of a right of reply, (l) the original broadcast also contained a statement from the person affected and such contents are equivalent to a right of reply, (m) an equivalent editorial correction has been made and the person affected informed, (n) the content of the proposed right of reply would violate the rights of a third party, (o) the matter concerned relates to reports on public sessions of the Houses of the Oireachtas or the Courts, (p) the matter concerned relates to a party political broadcast, (q) the matter concerned relates to a broadcast under section 3 of the Act of 1998, (r) the broadcast of a right of reply is not in the public interest, or (s) the application was not made within the period specified in subsection (18).
\n
(22)Where the Compliance Committee finds that the broadcaster has failed to comply with a decision under subsection (17) the Compliance Committee shall notify the broadcaster of those findings and give the broadcaster an opportunity to make representations in relation to the notification or remedy any non-compliance, not later than— (a) 10 days after issue of the notification, or (b) the end of such longer period as is agreed by the Compliance Committee with the broadcaster concerned.
\n
(23)Where, at the end of the period referred to in subsection (22), the Compliance Committee is of the opinion that the broadcaster concerned has not remedied its non-compliance, the Compliance Committee may recommend to the Authority, and the Authority shall follow such recommendation, that the Authority apply to the High Court for such order as may be appropriate in order to ensure compliance with a decision under subsection (17).
\n
(24)The High Court may, as it thinks fit, on the hearing of the application make an order— (a) compelling compliance with a decision under subsection (17), (b) varying a requirement under subsection (17), or (c) refusing the application.
\n
(25)A scheme shall be— (a) published by the Authority on a website maintained by the Authority, and (b) carried out in accordance with its terms by the Compliance Committee.
\n
(26)(a) A scheme shall be laid before each House of the Oireachtas by the Minister as soon as may be after it is prepared. (b) Either House of the Oireachtas may, by resolution passed within 21 sitting days after the day on which a scheme was laid before it in accordance with paragraph (a), annul the scheme. (c) The annulment under paragraph (b) of a scheme takes effect immediately on the passing of the resolution concerned but does not affect anything that was done under the scheme before the passing of the resolution.
\n
(27)The Authority shall review and report to the Minister on the operation, effectiveness and impact of a scheme not later than 3 years from the date on which it comes into operation and every 5 years thereafter or at such time as may be requested by the Minister.
\n
(28)A copy of a report under subsection (27) shall be laid by the Minister before each House of the Oireachtas as soon as may be after it has been made to him or her.
\n
PART 5
\n
Enforcement
\n
Chapter 1
\n
Compliance with terms of contract Investigation into affairs of contractor.
\n
50.— (1) The Compliance Committee may for any of the reasons specified in subsection (2) conduct an investigation into the operational, programming, financial, technical or other affairs of a holder of a contract under
\n
Part 6
\n
or 8 (“ contractor ”).
\n
(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.
\n
(3)The Compliance Committee shall notify the contractor concerned of the matter under investigation and afford the contractor an opportunity to respond, within 7 days of the date of the notification, or such further period as the Committee allows, to the matter under investigation. It is the duty of the contractor to co-operate in the investigation.
\n
(4)An investigator may for the purposes of an investigation under this section require the contractor concerned to— (a) produce to the investigator such information or records in the contractor’s possession or control relevant to the investigation, (b) allow the investigator to enter the premises of the contractor to conduct such inspections and make such examinations of broadcasting equipment found there, and (c) where appropriate, attend before the investigator for the purposes of the investigation.
\n
(5)Where an investigator, having conducted an investigation under subsection (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.
\n
(6)The contractor concerned shall supply the Compliance Committee with such information and records the Committee considers necessary for the purposes of a hearing.
\n
(7)After consideration of submissions (if any) made by the contractor concerned under subsection (5), the Compliance Committee may— (a) make a finding that the contractor is not providing the service referred to in subsection (2) in accordance with the terms of the contractor’s contract, or (b) make such other finding as it considers appropriate in the circumstances.
\n
(8)The Compliance Committee shall make rules providing for the conduct of a hearing under subsection (5). The rules shall provide for the period in which submissions under subsection (5) are to be made. The rules may include provision for an oral or other form of hearing, as appropriate.
\n
(9)In this section “investigator” means a person appointed as such under subsection (2).
\n
Termination or suspension of contract under Part 6 or 8.
\n
51.— (1) Without prejudice to any specific provision of this Act, or of a contract made under it, the Compliance Committee may recommend to the Authority that the Authority terminate or suspend, for such period of suspension as the Compliance Committee considers reasonable and specifies in the recommendation, a contract entered into by the Authority under
\n
Part 6
\n
or 8— (a) if any false or misleading information of a material nature was given to the Contract Awards Committee by or on behalf of the holder of the contract before it was entered into, or (b) if the holder of the contract has, upon a finding by the Compliance Committee under section 50
\n
(7), having regard to the investigation concerned under that section, failed on one or more occasions to comply with a term or condition of the contract and the nature of that failure is of such seriousness as, in the opinion of the Compliance Committee, warrants the termination or suspension of the contract, and the Authority shall— (i) where the Compliance Committee recommends that the contract be suspended, suspend the contract concerned for such period as the Compliance Committee recommends or, having regard to all the circumstances, for such lesser period as the Authority considers appropriate, or (ii) where the Compliance Committee recommends that the contract be terminated, terminate the contract concerned or, having regard to all the circumstances, suspend the contract for such period as the Authority considers appropriate.
\n
(2)Where the Compliance Committee proposes to make a recommendation under subsection (1) the Committee shall by notification afford the holder of the contract concerned an opportunity to make submissions, in accordance with any rules made under subsection (3), at a hearing before the Committee in respect of the matter under consideration.
\n
(3)The Compliance Committee shall make rules providing for the conduct of a hearing under subsection (2). The rules shall provide for the period in which submissions under subsection (2) are to be made. The rules may include provision for an oral or other form of hearing, as appropriate.
\n
(4)A decision to terminate or suspend a contract by the Authority under this section, any other provision of this Act or a provision of the contract, may be appealed by the holder of the contract to the High Court.
\n
(5)The members of the Authority making a decision under subsection (1) (i) or (ii) in relation to the suspension or termination of a contract shall not include a member of the Compliance Committee who made the recommendation to the Authority. The Authority may allow the holder of the contract concerned to make further submissions to it, if it considers it appropriate, in accordance with any rules it makes (which may include the possibility of a hearing).
\n
(6)A contract terminated or suspended under this section, under any other provision of this Act or under a provision of the contract, shall— (a) in case it is terminated, cease to have effect, and (b) in case it is suspended, cease to have effect for the period for which it is suspended.
\n
Chapter 2
\n
Financial Sanctions Definitions (Chapter 2).
\n
52.— In this Chapter— “ Court ” means High Court; “ breach ” means a serious or repeated failure by a broadcaster to comply with a requirement referred to in section 53
\n
(1); “ financial sanction” means a specified amount to be paid by a broadcaster for a breach by the broadcaster as directed by the Court under section 55
\n
(1)or the Authority under section 55
\n
(3); “ investigation ” means an investigation by an investigating officer into any of the matters referred to in section 53
\n
(1); “ investigating officer ” means a person appointed as such under section 53
\n
(1).
\n
Investigation into affairs of broadcaster.
\n
53.— (1) The Compliance Committee shall, subject to subsection (2), appoint a member of the staff of the Authority, or such other person as the Committee considers to be suitably qualified to be an investigating officer for the purposes of this Chapter where it is of the opinion that there are circumstances suggesting that it is appropriate to investigate and report on any apparent breach by a broadcaster of a requirement of section 39
\n
(1), 40
\n
(1), (2) or (3), 41
\n
(2), (3) or (4), 106
\n
(3)or 127
\n
(6)or a broadcasting code or rule.
\n
(2)The terms of appointment of an investigating officer under this section shall relate to the particular apparent breach being investigated and may define the scope of his or her investigation, whether as respects the matters or the period to which it is to extend or otherwise, and in particular may limit the investigation to matters connected with particular circumstances.
\n
(3)Where the Compliance Committee appoints an investigating officer to investigate and report on an apparent breach by a broadcaster, the investigating officer shall— (a) notify the broadcaster (“ broadcaster concerned”) of the matter under investigation, (b) supply the broadcaster with copies of any documents relevant to the investigation, and (c) afford to the broadcaster an opportunity to respond, within 7 days of the date of the notification, or such further period not exceeding 21 days as the Committee allows, to the matter under investigation.
\n
(4)It is the duty of the broadcaster concerned to co-operate in any such investigation and provide the investigating officer with such information as he or she considers necessary for the purposes of the investigation.
\n
(5)Where the Compliance Committee appoints an investigating officer to investigate and report on an apparent breach and either— (a) a person employed by the broadcaster concerned, or (b) if the making of any programme, the subject of such an investigation, was commissioned by the broadcaster concerned, the person commissioned to make that programme, requests, for reasons specified by the person, that the Compliance Committee afford to him or her an opportunity to comment within 7 days, or such further period not exceeding 21 days as the Committee allows, on the matter under investigation, then the Compliance Committee shall, having considered the reasons so specified, require the investigating officer to afford to the person such an opportunity, if the Committee is satisfied that— (i) in the case of a person referred to in paragraph (a), an interest of the person, which the Compliance Committee considers relevant to the person’s employment by the broadcaster concerned, is involved, (ii) in the case of a person referred to in paragraph (b), the prospects of the person obtaining further commissions in respect of programmes from the broadcaster concerned, may, because of the matter under investigation, be adversely affected, or (iii) in the case of a person referred to in paragraph (a) or (b), it is in the interests of fairness to do so, having regard to any potential consequences for the good name of the person.
\n
(6)Where the Compliance Committee proposes to investigate non-compliance by a broadcaster with a broadcasting code which provides for any of the matters referred to in section 42
\n
(2)(g) or (h), the investigating officer shall afford to the person employing such matter in a broadcasting service an opportunity to comment within 7 days of notification, or such further period not exceeding 21 days as the Committee allows, in relation to the matter under investigation.
\n
(7)An investigating officer may for the purposes of this section require the broadcaster concerned to— (a) provide to the investigating officer such information or records in the broadcaster’s possession or control relevant to the investigation, and (b) where appropriate, attend before the investigating officer for the purposes of the investigation.
\n
Report, findings, recommendations and procedures relating to outcome of investigation.
\n
54.— (1) (a) Where an investigating officer forms the view that there has been a breach in respect of any matter which he or she is investigating or the broadcaster concerned has failed to co-operate with the investigation, the officer shall report this to the Compliance Committee. (b) The report of an investigating officer in relation to an investigation to the Compliance Committee shall include— (i) the investigating officer’s findings in relation to the matter, (ii) any response received under section 53
\n
(3)or comment received under section 53
\n
(5)or (6), (iii) details of any failure by the broadcaster concerned to comply with section 53
\n
(7), and (iv) the recommendation of the investigating officer.
\n
(2)Where an investigating officer forms a view that there has been a breach by the broadcaster concerned or that the broadcaster has not co-operated with the investigation, the broadcaster shall be afforded the opportunity of making a submission to the Compliance Committee within 10 days of being notified of the investigating officer’s views and recommendation.
\n
(3)Where the Compliance Committee, having considered a report under subsection (1) and any submissions made under subsection (2), finds that— (a) there has been a breach by the broadcaster concerned, or (b) the broadcaster concerned has failed to co-operate in an investigation, the Committee may recommend to the Authority that the Authority notify the broadcaster concerned in accordance with subsection (4). The Authority shall comply with the recommendation.
\n
(4)A notification under subsection (3) shall— (a) set out the reasons for the notification, (b) state that the Authority intends to apply to the Court for a determination that there has been a breach or a failure to co-operate with an investigation, unless the broadcaster concerned requests, in writing within 14 days of the date of the notification or such further period as the Authority allows, that the Authority deal with the matter under section 55
\n
(2), and (c) indicate the amount of the financial sanction (not exceeding €250,000) that it proposes, if the matter is dealt with by the Authority under section 55
\n
(2), and the Authority may indicate in the notification the amount of the financial sanction (not exceeding €250,000) that it intends to recommend to the Court if the matter is dealt with by the Court under section 55
\n
(1).
\n
(5)Where the broadcaster concerned fails to make a request under subsection (4)(b) within the period referred to in that paragraph or informs the Authority that no such request will be made, the Authority shall apply to the Court for a determination that there has been a breach or a failure to co-operate with an investigation by the broadcaster concerned.
\n
(6)Where a broadcaster makes a request under subsection (4)(b), the Authority shall afford the broadcaster an opportunity to make submissions at a hearing before the Authority in respect of the matter.
\n
(7)Where a broadcaster takes the opportunity to make submissions at a hearing under subsection (6), the members of the Authority conducting the hearing shall not include any person who was a member of the Compliance Committee which appointed an investigating officer under section 53
\n
(1)to investigate the alleged breach and made a recommendation under subsection (3).
\n
(8)The Authority shall make rules providing for the conduct of a hearing under subsection (6). The rules may include provision for an oral or other form of hearing, as appropriate, and for the taking of evidence whether orally or otherwise, as appropriate, and the applicable rules of evidence.
\n
(9)The Authority may not award costs or expenses to any party in relation to a hearing under subsection (6).
\n
Financial sanctions.
\n
55.— (1) The Court, in any application made to it under section 54
\n
(5)— (a) may— (i) make a determination that there has been a breach or a failure to co-operate with an investigation by the broadcaster concerned, (ii) if it thinks fit direct, having regard to any amount the Authority recommends and taking into consideration the matters referred to in section 56 , that the broadcaster concerned shall pay to the Authority a financial sanction not exceeding €250,000, in respect of the breach or failure to co-operate with the investigation in question, and (iii) make such order it considers appropriate, or (b) may dismiss the application, and the Court may make such order as to costs as it thinks fit in respect of the application.
\n
(2)Where a request in writing has been made to it by a broadcaster under section 54
\n
(4), the Authority may make a determination that there has or has not been a breach or a failure to co-operate with an investigation by the broadcaster concerned and issue a statement of findings to the broadcaster.
\n
(3)Where the Authority determines under subsection (2) that there has been a breach or a failure to co-operate with an investigation by the broadcaster concerned, the Authority may direct, taking into consideration and having regard to the matters referred to in section 56 , that the broadcaster shall pay the Authority a financial sanction not exceeding the amount as proposed in a notification given to the broadcaster in accordance with section 54
\n
(4)(c), in respect of the breach or the failure to co-operate with an investigation.
\n
(4)The Authority may publish on a website maintained by the Authority such details as it considers proper concerning a decision of the Court under subsection (1) or such a statement of findings made by it under subsection (2).
\n
(5)A broadcaster may appeal to the Court against either or both a statement of findings issued in respect of the broadcaster under subsection (2) and a financial sanction imposed against the broadcaster under subsection (3).
\n
(6)A sum due under this section may be recovered in any court of competent jurisdiction as a simple contract debt.
\n
(7)All payments made to the Authority under this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.
\n
Matters to be considered in determining the amount of financial sanction.
\n
56.— In considering the amount (if any) of any financial sanction to be imposed on a broadcaster under section 55 the Authority or the Court shall take into account the circumstances of the breach or the failure to co-operate with an investigation in question, as the case may be, and shall, where appropriate in the circumstances, have regard to— (a) the need to ensure that any financial sanction imposed— (i) is appropriate and proportionate to the breach or the failure to co-operate with the investigation, and (ii) will act as a sufficient incentive to ensure future compliance in respect of the requirement breached, (b) the seriousness of the breach, (c) the turnover of the broadcaster in the financial year ending in the year previous to the breach and the ability of the broadcaster to pay the amount, (d) the extent of any failure to co-operate with the investigation, (e) any excuse or explanation by the broadcaster for the breach or failure to co-operate with the investigation, (f) any gain (financial or otherwise) made by the broadcaster or by any person in which the broadcaster has a financial interest as a consequence of the breach, (g) the appropriateness of the time when the programme material concerned was broadcast, (h) the degree of harm caused or increased cost incurred by audiences, consumers or other sectoral or market participants as a consequence of the breach, (i) audience expectations as to the nature of the programme material, (j) the duration of the breach, (k) repeated breaches by the broadcaster, (l) continuation by the broadcaster of— (i) the breach, or (ii) the broadcasting of the matter to which an investigation relates after being notified of the investigation under section 53
\n
(3)(a), (m) the extent to which— (i) the management of the broadcaster knew, or ought to have known, that the breach was occurring or would occur, and (ii) any breach was caused by a third party, or any relevant circumstances beyond the control of the broadcaster, (n) the absence, ineffectiveness or repeated failure of internal mechanisms or procedures of the broadcaster intended to prevent breach by the broadcaster, (o) the extent to which the broadcaster had taken steps in advance to identify and mitigate external factors that might result in a breach, (p) the extent and timeliness of any steps taken to end the breach in question, and any steps taken for remedying the consequences of the breach, (q) submissions by the broadcaster on the appropriate amount of a financial sanction, (r) whether a financial sanction in respect of similar conduct has already been imposed on the broadcaster by the Court or Authority, and (s) any precedents set by the Court or Authority in respect of previous breaches or failures to co-operate with an investigation.
\n
Chapter 3
\n
Notifications Notifications.
\n
57.— (1) Where a notification is required under this Part to be given to a broadcaster or contractor, it shall be addressed to the broadcaster or contractor and shall be given to the broadcaster or contractor in one of the following ways— (a) by delivering it to the broadcaster or contractor, (b) by leaving it at the address at which the broadcaster or contractor carries on business, (c) by sending it by post in a pre-paid registered letter addressed to the broadcaster or contractor at the address at which the broadcaster or contractor carries on business, (d) if an address for the service of a notification has been furnished by the broadcaster or contractor, by leaving it at, or sending it by pre-paid registered post addressed to the broadcaster or contractor to, that address, or (e) by sending it by means of electronic mail or a facsimile machine, to a device or facility for the reception of electronic mail or facsimiles located at the address at which the broadcaster or contractor carries on business or, if an address for the service of a notification has been furnished by the broadcaster or contractor, that address, but only if— (i) the sender’s— (I) facility for the reception of electronic mail generates a message confirming a receipt of the electronic mail, or (II) facsimile machine generates a message confirming successful transmission of the total number of pages of the notification, and (ii) the notification is also given in one of the other ways mentioned in any of the preceding paragraphs.
\n
(2)For the purposes of subsection (1), a company registered under the Companies Acts is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body is deemed to be ordinarily resident at its principal office or place of business.
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(3)A copy of a notification, which has endorsed on it a certificate purporting to be signed by an investigator under
\n
Chapter 1
\n
or investigating officer under
\n
Chapter 2
\n
, as the case may be, stating that the copy is a true copy of the notification may, without proof of signature of that person, be produced in every court or before the Authority and in all legal proceedings and is evidence, unless the contrary is shown, of the notification.
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(4)In this section “notification” means a notification under this Part.
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PART 6
\n
Broadcasting Contracts and Content Provision Contracts — Commercial and Community Broadcasters Interpretation (Part 6).
\n
58.— (1) In this Part— “ broadcasting licence ” means a licence granted under section 59 ; “ sound broadcasting contract ” means a contract entered into under section 63 ; “ television programme service contract ” means a contract entered into under section 70 .
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(2)Any contract in respect of broadcasting entered into under an enactment repealed by section 3 by the BCI with another person which is in force immediately before the passing of this Act continues in force as if made under the corresponding provision of this Part and has effect accordingly.
\n
Broadcasting licence.
\n
59.— (1) The Authority shall not authorise a broadcasting contractor to operate a broadcasting transmitter and provide a broadcasting service under a broadcasting contract unless and until the Communications Regulator has granted under this subsection to the Authority a licence (“broadcasting licence”) under section 5 of the Act of 1926 in respect of the sound or television broadcasting transmitter to which the contract relates.
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(2)A broadcasting licence shall be valid only for such period of time as a broadcasting contract between the Authority and a broadcasting contractor is in force.
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(3)Every broadcasting contract shall contain a condition requiring the broadcasting contractor concerned to establish, maintain and operate the broadcasting transmitter concerned in accordance with such terms and conditions as the Communications Regulator attaches to the broadcasting licence to which the contract relates (including any variations made to it in accordance with section 60 ), and so long as the terms and conditions are complied with, the contract has the effect of conveying the benefits of the licence to the broadcasting contractor and any such transmitter so established, maintained and operated shall be deemed to be licensed for the purposes of the Act of 1926.
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(4)Every broadcasting licence shall be open to inspection by members of the public at the Authority’s registered office, at such times as the Authority considers reasonable during office opening hours.
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Variation of broadcasting licence.
\n
60.— (1) The Communications Regulator may vary any term or condition of a broadcasting licence— (a) if it appears to it to be necessary so to do in the interest of good radio frequency management, (b) for the purpose of giving effect to any international agreement to which the State is a party and which has been ratified by the State and which relates to broadcasting, (c) if it appears to it to be in the public interest so to do, (d) if it appears to it to be necessary for the safety or security of persons or property so to do, (e) on request from the Authority after consultation with any affected broadcasting contractor, or (f) on request from the Authority on behalf of a broadcasting contractor.
\n
(2)(a) If the Communications Regulator, for any reason specified in paragraph (a), (b) or (c) of subsection (1) proposes to vary, under this section, any term or condition of a broadcasting licence, the Regulator shall, by notice in writing, inform the Authority of the Regulator’s intentions and of the reasons for it. The Authority shall, within 7 days of receiving the notice, give notice in writing to the broadcasting contractor concerned of the intention. (b) The broadcasting contractor shall have the right to make representations in writing to the Authority in respect of the Communications Regulator’s intentions, within 21 days after the service of the notice by the Authority. (c) The Authority shall transmit any such representations to the Communications Regulator within a further 7 days and the Communications Regulator, having considered the representations, may make such decision thereon as seems to it to be appropriate.
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(3)(a) If, having considered the representations (if any) which have been notified to it by the Authority by or on behalf of a broadcasting contractor, the Communications Regulator decides to vary any term or condition of a licence, it shall, by notice in writing, inform the Authority of its decision. (b) The Authority shall, within 7 days of receipt of the Communications Regulator’s decision by notice in writing inform the broadcasting contractor of that decision. (c) On and from the day following service on the contractor of notice of the Communications Regulator’s decision the licence shall have effect subject to the variation of it by that decision.
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(4)Where a notice is required under this section to be given to the Authority or a broadcasting contractor, it shall be addressed to the Authority or the broadcasting contractor and shall be given to the Authority or the broadcasting contractor in one of the following ways— (a) by delivering it to the Authority or the broadcasting contractor, (b) by leaving it at the address at which the Authority or the broadcasting contractor carries on business, (c) by sending it by post in a pre-paid registered letter addressed to the Authority or the broadcasting contractor at the address at which the Authority or the broadcasting contractor carries on business, (d) if an address for the service of a notice has been furnished by the Authority or the broadcasting contractor, by leaving it at, or sending it by pre-paid registered post addressed to the Authority or the broadcasting contractor to, that address, or (e) by sending it by means of electronic mail or a facsimile machine, to a device or facility for the reception of electronic mail or facsimiles located at the address at which the Authority or the broadcasting contractor carries on business or, if an address for the service of a notification has been furnished by the Authority or the broadcasting contractor, that address, but only if— (i) the sender’s— (I) facility for the reception of electronic mail generates a message confirming a receipt of the electronic mail, or (II) facsimile machine generates a message confirming successful transmission of the total number of pages of the notice, and (ii) the notice is also given in one of the other ways mentioned in any of the preceding paragraphs.
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(5)For the purposes of subsection (4), a company registered under the Companies Acts is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body is deemed to be ordinarily resident at its principal office or place of business.
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Emergencies.
\n
61.— (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.
\n
(2)During the continuance of any national emergency, the Minister may suspend any broadcasting licence or multiplex licence as defined in section 129 and, while any such suspension continues, the Minister may operate any service which was provided under the suspended licence or require such service to be operated as he or she directs.
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(3)The Authority shall have the power to require broadcasting contractors and network providers to co-operate with the relevant public bodies in the dissemination of relevant information to the public in the event of a major emergency.
\n
(4)If and whenever the Minister shall exercise the powers conferred on him or her by subsection (2) the broadcasting contractor or multiplex contractor shall be entitled to receive from the Minister, with the consent of the Minister for Finance— (a) such sums as are required to defray any expenses which, regard being had to the nature of the emergency, have been properly and necessarily incurred by the broadcasting contractor or multiplex contractor and for meeting which revenue is by reason of the exercise of such powers not otherwise available to the broadcasting contractor or multiplex contractor, and (b) compensation for any damage done to any property of the broadcasting contractor or multiplex contractor, being damage directly attributable to the exercise of such powers.
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(5)At the request of the Minister, the Authority shall direct a broadcasting contractor to allocate broadcasting time for 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 broadcasting contractor shall comply with the direction.
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(6)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.
\n
(7)In complying with a direction under subsection (5) or (6) a broadcasting contractor or network provider may broadcast an announcement that it has received such a direction from the Authority.
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Restriction on award of sound broadcasting contract.
\n
62.— The Contract Awards Committee shall not recommend to the Authority the grant of a sound broadcasting contract to a person who has been convicted of an offence under section 3(3) (inserted by section 181
\n
(2)) of the Act of 1926 or under section 3, 4 or 5 of the Act of 1988 if the conviction occurred less than 12 months before the first day on which the person proposes to engage in sound broadcasting activities to which the application for the sound broadcasting contract relates.
\n
Sound broadcasting contracts.
\n
63.— The Authority, on the recommendation of the Contract Awards Committee, shall enter into contracts (“ sound broadcasting contracts” ) with persons (“ sound broadcasting contractors ”) under which the sound broadcasting contractors have, subject to this Part, the right and duty to establish, maintain and operate sound broadcasting transmitters serving the areas specified in the sound broadcasting contract and to provide, as the sound broadcasting contract may specify, a sound broadcasting service.
\n
Community sound broadcasting contracts.
\n
64.— The Authority, on the recommendation of the Contract Awards Committee, may enter into a class of sound broadcasting contract (“ community sound broadcasting contract ”) with 2 or more members of a local community or of a community of interest if it is satisfied that— (a) those members are representative of, and accountable to, the community concerned, and (b) the supply of programme material in pursuance of the contract will be effected with the sole objective of— (i) specifically addressing the interests of, and seeking to provide a social benefit to, the community concerned, and (ii) achieving a monetary reward of no greater amount than is reasonably necessary to defray the expenses that will be incurred in effecting that supply.
\n
Applications for sound broadcasting contracts.
\n
65.— (1) In order to secure the orderly development of broadcasting services and to allow for the establishment of a diversity of services in an area catering for a wide range of tastes including those of minority interests, the Authority shall liaise and consult with the Communications Regulator in the preparation by that body of an allocation plan for the frequency range dedicated to sound broadcasting.
\n
(2)The Authority, having regard to an allocation plan under subsection (1) and after consultation with the Communications Regulator, in respect of the availability of radio frequencies for sound broadcasting services shall— (a) specify the area (which area may consist of the whole or any part of the State) in relation to which applications for a sound broadcasting contract are to be invited, and (b) direct the Contract Awards Committee to invite applications for sound broadcasting contracts for the area specified and the Committee shall comply with such direction.
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(3)Where the Authority proposes to specify an area under subsection (2), the Authority may conduct, or arrange for there to be conducted, either or both— (a) a study in that area or amongst a community of interest for the purposes of ascertaining the interests and wishes of that area or community in respect of sound broadcasting services, or (b) a study as to the sectoral impact of an additional sound broadcasting contract in that area.
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(4)The Authority shall publish the results of any study conducted under subsection (3) on a website maintained by the Authority.
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(5)The Authority may direct the Contract Awards Committee to consider the results of a study conducted under subsection (3) in complying with a direction under subsection (2), and the Contract Awards Committee shall comply with such an additional direction.
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(6)On receipt of a direction from the Authority under subsection (2) the Contract Awards Committee may, in accordance with the terms of any such direction, by public notice invite expressions of interest in the securing of contracts for sound broadcasting services under this Act. Any expressions of interest must be made within 60 days of the date of such notice and must indicate in general terms the type of service that would be provided and shall not be regarded as an application for a sound broadcasting contract.
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(7)A public notice under subsection (6) may invite all interested parties to express their views on the type of sound broadcasting service proposed.
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(8)The Contract Awards Committee shall, subject to this Part, invite applications for a sound broadcasting contract for the provision of a sound broadcasting service in each area specified by the Authority under subsection (2) and, subject to this Part, may recommend that the Authority enter into such contract, and the Authority shall follow any such recommendation.
\n
(9)Where the Contract Awards Committee invites applications for a sound broadcasting contract for the provision of a sound broadcasting service it shall by public notice specify the area in relation to which the sound broadcasting service is to be provided pursuant to such contract and by such notice shall invite persons interested in providing such a service to apply for such contract.
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(10)In considering applications for the award of a sound broadcasting contract the Contract Awards Committee shall determine applications in accordance with section 66 and assign a score to each, or a combination of, the criteria specified in section 66
\n
(2)and the Contract Awards Committee shall inform each person who has indicated his or her intention of being an applicant for a contract of such assignment.
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(11)The Contract Awards Committee shall in reaching its decision as to the award of a sound broadcasting contract assign an agreed score to each of the applications received in accordance with subsection (10).
\n
(12)The Contract Awards Committee’s view on an assignment of a score under subsection (11) shall be determined by a majority of the votes of the members of the Contract Awards Committee.
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(13)Every notice under subsection (9) shall— (a) be published on a website maintained by the Authority, and where appropriate, in a newspaper circulating in the area to be served, (b) specify the procedure to be followed in order to make an application, and (c) specify any other matters which appear to the Contract Awards Committee to be necessary or relevant.
\n
Determination of applications for award of sound broadcasting contracts and television programme service contract.
\n
66.— (1) The Contract Awards Committee shall, in accordance with this Part, consider every application received by it— (a) for a sound broadcasting contract made under section 65
\n
(8), or (b) for a television programme service contract, for the purpose of determining the most suitable applicant, if any, to be awarded a broadcasting contract.
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(2)In the consideration of applications referred to in subsection (1) received by it and in determining the most suitable applicant to be awarded a broadcasting contract, the Contract Awards Committee shall have regard to— (a) the character, expertise and experience of the applicant or, if the applicant is a body corporate, the character expertise and experience of the body and its directors, manager, secretary or other similar officer and its members and the persons entitled to the beneficial ownership of its shares, (b) the adequacy of the financial resources that will be available to each applicant and the extent to which the application accords with good business and economic principles, (c) the quality, range and type of the programmes proposed to be provided by each applicant or, if there is only one applicant, by that applicant, (d) the quantity, quality, range and type of programmes in the Irish language and the extent of programmes relating to Irish culture proposed to be provided, (e) the extent to which the applicant will create within the proposed broadcasting service new opportunities for talent in music, drama and entertainment and in particular in respect of Irish culture, (f) the desirability of having a diversity of services in the area specified in the notice catering for a wide range of tastes including those of minority interests, (g) the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue number of sound broadcasting services in respect of which a sound broadcasting contract has been awarded under this Part, (h) the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue number of sound broadcasting services in the area specified in the notice, (i) the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue amount of the communications media in the area specified in the notice, (j) the extent to which the service proposed— (i) serves recognisably local communities and is supported by the various interests in the community, or (ii) serves communities of interest, (k) any other matters which the Contract Awards Committee considers to be necessary to secure the orderly development of broadcasting services, and (l) where directed by the Authority, any of— (i) the amount of a single cash sum payment, as specified by the applicant during the course of his or her application, which the applicant is willing to pay to the Authority in respect of the award of the broadcasting contract,
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(ii) the amount of a periodic cash sum payment, as specified by the applicant during the course of his or her application, which the applicant is willing to pay to the Authority in respect of the award of the broadcasting contract, and (iii) the amount of a periodic cash sum payment determined by reference to a variable, as specified by the applicant during the course of his or her application, which the applicant is willing to pay to the Authority in respect of the award of the broadcasting contract.
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(3)In considering the suitability of any applicant for the award of a sound broadcasting contract to provide a sound broadcasting service in respect of an area which includes a Gaeltacht area, the Contract Awards Committee shall have particular regard to the continuance and advancement as a spoken language of the Irish language.
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(4)In considering the suitability of an applicant for the award of a broadcasting contract, the Contract Awards Committee shall have regard to— (a) the overall quality of the performance of the applicant with respect to the provision by him or her of a broadcasting service under any broadcasting contract held by him or her at, or before, the date of the making of the application, and (b) reports of the Compliance Committee.
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(5)Where the Contract Awards Committee decides to refuse to recommend the award of a broadcasting contract to an applicant, the Contract Awards Committee shall notify the applicant of— (a) the reasons for the decision, (b) the score of the applicant, and (c) the score of any successful applicant.
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(6)In this section “notice” means a notice under section 65
\n
(9).
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Fast-track application process for award of sound broadcasting contracts.
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67.— (1) In this section— “ Committee ” means Contract Awards Committee; “ fast-track procedure ” means a procedure provided for under subsection (2); “ incumbent ” means the holder of a sound broadcasting contract which is the subject of a notice under section 65
\n
(6).
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(2)Where, in the opinion of the Committee, the only response made in good faith pursuant to a public notice under section 65
\n
(6), is received from the incumbent, then the Committee may at its discretion propose to invoke a fast-track procedure under subsection (6).
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(3)Where the Committee proposes to invoke a fast-track procedure, it shall by notice published on a website maintained by the Authority, and where appropriate in a newspaper circulating in the area to be served, state its intention to invoke such a procedure.
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(4)If a person, other than the incumbent, within 28 days of a notice published under subsection (3)— (a) submits in writing that he or she wishes to apply for the award of a sound broadcasting contract for the area concerned, and (b) deposits such a sum with the Authority as is specified by the Committee in any notice under subsection (3), not exceeding €25,000, then the Committee shall proceed to— (i) invite applications for the award of a sound broadcasting contract for the area concerned under section 65
\n
(8), or (ii) refer the matter to the Authority for direction.
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(5)Where, in the opinion of the Committee, an application under section 65 has been received consequent to a submission under subsection (4) then any sum deposited under subsection (4) shall be refunded in full.
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(6)In the event that no written submission and associated deposit are received under subsection (4) the Committee may— (a) request the Compliance Committee to prepare a report on the incumbent’s compliance with the terms of its sound broadcasting contract and
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Part 3
\n
, (b) invite the incumbent to make a proposal to amend the terms of his or her sound broadcasting contract, and (c) suggest to the incumbent possible amendments to the terms of his or her contract.
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(7)A proposal received under subsection (6) must address— (a) the matters outlined in section 66 , and (b) such other matters as the Committee may consider relevant.
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(8)On consideration of a proposal received under subsection (6) the Committee may— (a) reject the contractual changes proposed by the incumbent and proceed to invite applications under section 65
\n
(8)from other persons for the area concerned, (b) refer the matter to the Authority for direction, or (c) recommend to the Authority, and the Authority shall follow any such recommendation, that the Authority agree the amended contract terms recommended by the Committee with the incumbent.
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(9)The term of any contract extension agreed under subsection (8) shall not exceed 10 years.
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(10)All payments made to the Authority under subsection (4) (b) and subsequently forfeited by the applicant shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.
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Sound broadcasting contracts for temporary or institutional sound broadcasting services.
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68.— (1) The Authority, on the recommendation of the Contract Awards Committee, may, in any period of 12 months, enter into a sound broadcasting contract with an applicant for the provision in such area as may be specified in the contract of a sound broadcasting service for a period of— (a) not more than 30 days (whether consecutive days or otherwise) in that period of 12 months, or (b) if the application is for a community sound broadcasting contract, not more than 100 days (whether consecutive days or otherwise) in that period of 12 months.
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(2)The Authority, on the recommendation of the Contract Awards Committee, may enter into a sound broadcasting contract with an applicant for the provision of a low-power sound broadcasting service which is intended to serve only such single educational institution, hospital, or other similar establishment as may be specified in the contract.
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(3)Section 39
\n
(1)(c) does not apply to a contract awarded for the provision of a sound broadcasting service under this section.
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(4)Sections 65 and 66 do not apply in the case of a contract applied for, or awarded, for the provision of a sound broadcasting service under this section.
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Terms and conditions of broadcasting contract.
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69.— (1) Every broadcasting contract may contain such terms and conditions as the Authority thinks appropriate and specifies in the contract.
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(2)Without prejudice to the generality of subsection (1), the Authority may specify in a broadcasting contract all or any of the following terms or conditions: (a) the period during which the contract shall continue in force; (b) whether the contract may be renewed and, if so, the manner in which, the terms on which, and the period for which, the contract may be so renewed; (c) a condition prohibiting the assignment of the contract or of any interest in it; (d) if the broadcasting contractor is a company, a condition prohibiting any alteration in the Memorandum or Articles of Association of the company or in so much of that Memorandum or of those Articles as may be specified or prohibiting any material change in the ownership of the company; (e) a condition requiring the broadcasting contractor to provide the quality, range and type of programmes which he or she proposed to offer in his or her application for the award of the contract; (f) a condition requiring the sound broadcasting contractor to pay to the Authority the amount which the contractor specified in his or her application.
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(3)If a broadcasting contract does not contain a condition of the type specified in paragraph (c) or (d) of subsection (2), the following provisions shall have effect: (a) a broadcasting contract, or any interest in a broadcasting contract, shall not be assignable, nor shall any alteration be made in the Memorandum or Articles of Association of any company which is a broadcasting contractor, nor shall there be any material change in the ownership of such a company, without the previous consent in writing of the Authority, and the Authority may, if it considers it reasonable so to do, refuse such consent; (b) in considering whether to grant its consent to an assignment of a broadcasting contract, a change in the Memorandum or Articles of Association of a company which is a broadcasting contractor, or a material change in the ownership of such a company, the Authority shall have regard to the criteria specified in section 66
\n
(2)and, where applicable, section 66
\n
(4).
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(4)Every broadcasting contract shall provide that the broadcasting contractor shall provide such information (including copies of his or her accounts) which the Authority or the Compliance Committee considers it requires in order to enable it carry out its functions under this Act.
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(5)Every broadcasting contract shall be open to inspection by members of the public at the Authority’s registered office and the Authority shall, on request made by any person and on payment of such sum (if any) as the Authority may reasonably require, give to that person a copy of that contract.
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(6)In order to avoid the loss of sound programme material inimical to the preservation of a historical record of Irish culture, heritage and experience and as an initial step towards the development of an integrated approach to the archiving of programme material produced in the State, every sound broadcasting contract shall contain a term or condition requiring the sound broadcasting contractor to make a recording and to store categories of programme material, which may be inspected by the Authority, for the term of the sound broadcasting contract and for a period of 6 years thereafter.
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(7)The Authority shall, within one year of the passing of this Act, prescribe a format and categories to be followed by sound broadcasting contractors for the purposes of the storing and recording of programme material as required under subsection (6).
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(8)The Authority may vary the categories and amounts of programme material required to be recorded and stored by a sound broadcasting contractor having regard to the nature and amount of programme material broadcast by the sound broadcasting contractor and any financial burden associated with such recording and storage.
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(9)In carrying out its duties under subsections (7) and (8) the Authority shall have due regard to programme content which: (a) is in the Irish language, (b) relates to Irish culture and life, (c) concerns Irish music, drama and entertainment, (d) is news, current affairs or documentary, (e) is in any other category identified by the Authority and which the Authority deems is worthy of maintenance and preservation.
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(10)The Authority may store on behalf of a sound broadcasting contractor or a person who held a sound broadcasting contract any programme material recorded under subsection (6).
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(11)The making of a recording and storage of programme material in compliance with subsection (6) or (10) is not a contravention of the Copyright and Related Rights Act 2000 .
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(12)The Authority shall report to the Minister on an annual basis in relation to the performance of its duties under subsections (7), (8), (9) and (10).
\n
(13)Any amount paid to the Authority by a contractor, being an amount which the contractor specified in his or her application, shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.
\n
Television programme service contract.
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70.— (1) The Authority, on the recommendation of the Contract Awards Committee, shall enter into a contract (“ television prog ramme service contract ”) with a person or persons (“ television prog ramme service contractor ”) who shall have the right and duty to establish and maintain a television programme service and who, subject to section 139 , shall have the right and duty, subject to the terms of the contract, to establish, maintain and operate television broadcasting transmitters for the purpose of transmitting the television programme service as a free-to-air service.
\n
(2)The Authority shall ensure that a television programme service provided by a television programme service contractor under this section shall in its programming— (a) be responsive to the interests and concerns of the whole community, be mindful of the need for understanding and peace within the whole island of Ireland, ensure that the programmes reflect the varied elements which make up the culture of the people of the whole island of Ireland, and have special regard for the elements which distinguish that culture and in particular for the Irish language, (b) uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, (c) have regard to the need for the formation of public awareness and understanding of the values and traditions of countries other than the State, including in particular those of other Member States, and (d) include a reasonable proportion of news and current affairs programmes.
\n
(3)A television programme service contractor shall in its programming comply with the requirements set out in paragraphs (a) to (d) of subsection (2).
\n
(4)For the purpose of ensuring compliance with subsection (2) the Authority shall ensure that a reasonable proportion of the television programme service— (a) is produced in the State or in another Member State, and (b) is devoted to original programme material produced therein by persons other than the contractor, its subsidiary, its parent or existing broadcasting organisations.
\n
(5)The television programme service contract entered into between TV3 Television Network Limited trading as TV3 and the BCI under section 17 of the Radio and Television Act 1988 and section 6 of the Broadcasting Act 1990 , if in force immediately before the passing of this Act, continues as if entered into under this section.
\n
(6)The Authority shall ensure that any contract entered into by it under this section and any such contract renewed by it under this Act, contains a term providing that the expression “independent television programme”, where used in the contract, has the same meaning as it has in section 116 .
\n
Content provision contracts.
\n
71.— (1) Subject to subsection (3), a person shall not supply a compilation of programme material for either of the purposes set out in subsection (2) otherwise than under and in accordance with a content provision contract.
\n
(2)The purposes for which subsection (1) applies are— (a) inclusion as part of a multiplex, (b) the purpose of its being transmitted as a broadcasting service in the State, part of the State or elsewhere by means of an electronic communications network including a satellite network, a MMD system, a fixed or mobile terrestrial network, a cable television network, an internet protocol television network or any other form of electronic communications network.
\n
(3)Subsection (1) does not apply to such a supply made by— (a) an excepted person for the purpose of any such arrangements, or (b) RTÉ, TG4, Houses of the Oireachtas Channel, Irish Film Channel or the holder of a broadcasting contract for the purposes of a free-to-air service.
\n
(4)The Authority, on the recommendation of the Contract Awards Committee, may enter into a contract (“content provision contract ”) with a person whereby that person may supply a compilation of programme material for the purposes referred to in subsection (2).
\n
(5)A content provision contract shall include— (a) a condition requiring the holder of the contract to comply with any broadcasting codes or rules with respect to the programme material supplied in pursuance of the contract, and (b) a condition authorising the Compliance Committee to request the holder of the contract to pay to the Authority, in respect of a failure by the holder to comply with a particular term or condition of the contract, a sum of money (not exceeding an amount that shall be specified in the condition as being the maximum amount that may be so requested to be so paid) and requiring the holder to comply with such a request.
\n
(6)A content provision contract shall include a condition providing that, where any of the programme material supplied in pursuance of the contract— (a) contravenes Article 22 or 3b of the Council Directive or the Prohibition of Incitement to Hatred Act 1989 , or (b) constitutes an incitement to commit an offence, the Authority may, or, if such a supply of programme material has occurred within 6 months of a previous such supply by the same person having occurred, shall, terminate the contract.
\n
(7)The Authority may divide the contracts it may enter into under this section into different classes by reference to the different conditions which, in pursuance of its powers under this Act, it may attach to the contracts and may style each such class of contract by the addition of such distinguishing words as it considers appropriate.
\n
(8)The Authority may, before it enters into a content provision contract with a person, require that person to pay a fee to the Authority of such amount as it considers appropriate. If that person fails to pay that fee to the Authority, the Authority shall not enter into the contract with him or her.
\n
(9)The Authority may specify different fees for particular classes of content provision contractors.
\n
(10)The amount of any fee paid to the Authority under subsection (8) may be used by it for the purpose of defraying the expenses incurred by it in performing its functions generally.
\n
Community content provision contracts.
\n
72.— (1) Subject to this section, 2 or more members of a local community or community of interest may supply a compilation of programme material for the purposes of its being transmitted as a broadcasting service under and in accordance with a MMD system transmission licence or by an appropriate network provider referred to in section 77
\n
(1).
\n
(2)Subject to subsections (3) and (4), the Authority may enter into a class of content provision contract (“ community content pro vision contract ”) with 2 or more members of a local community or a community of interest whereby those members may supply a compilation of programme material for the purposes referred to in subsection (1) if it is satisfied that— (a) those members are representative of, and accountable to, the community concerned, and (b) the supply of programme material in pursuance of the contract will be effected with the sole objective of— (i) specifically addressing the interests of, and seeking to provide a social benefit to, the community concerned, and (ii) achieving a monetary reward of no greater amount than is reasonably necessary to defray the expenses that will be incurred in effecting that supply.
\n
(3)The Authority shall not enter into a community content contract save after consultation with the person who it appears to the Authority will transmit or, as the case may be, will be the subject of a requirement under section 76
\n
(4)or 77
\n
(8)to transmit, the programme material supplied pursuant to the contract as a broadcasting service.
\n
(4)The Authority shall establish procedures whereby members of local communities are enabled, at regular intervals, to make submissions to the Authority as to what particular contracts ought, in their opinion, to be entered into under this section and what particular terms and conditions ought, in their opinion, to be included in such contracts and requiring the Authority to furnish, on request, to any such members particulars of any proposals formulated, for the time being, by the Authority itself with regard to each of those matters.
\n
(5)Before entering into a community content provision contract, the Authority shall have regard to any submissions made to it under and in accordance with procedures established under subsection (4) and which appear to it to be of relevance to that contract.
\n
(6)The Authority shall conduct, or arrange with members of the local community or community of interest concerned for there to be conducted, a survey, which shall be as comprehensive as is practicable, amongst members of that community for the purpose of ascertaining— (a) the extent to which that community is facilitated in the active participation by it in the compilation and transmission of the programme material supplied pursuant to a community content provision contract, (b) the extent to which those members view any broadcasting service on which there is transmitted that programme material, and (c) the opinion of those members with regard to— (i) the quality of that programme material, and (ii) whether that material specifically addresses the interests of their community, and shall have regard to the results of such a survey in deciding, in relation to any community content provision contract it proposes to enter into with members of that community next after the conduct of that survey, with whom it shall enter into such a contract and the nature of the terms and conditions it may include in that contract.
\n
(7)If the holder of a MMD system transmission licence is required under section 76
\n
(4), or an appropriate network provider referred to in section 77
\n
(1)is required under subsection (8) of that section, to transmit as a broadcasting service the programme material supplied pursuant to a community content provision contract, the holder or an appropriate network service provider shall not be— (a) under any duty to ensure that the material complies with the terms and conditions of that contract or the requirements of
\n
Part 3
\n
, (b) regarded, for the purposes of the law of defamation, malicious falsehood or any other form of civil liability as having, by virtue of such transmission, published the material, or (c) liable in damages, by virtue of such transmission, for any infringement of copyright, other intellectual property rights or other legal rights of any person.
\n
Assessment of community needs in respect of broadcasting.
\n
73.— The Authority may, of its own initiative or at the request of a local community or community of interest, carry out an assessment of the needs of a community in respect of broadcasting and such an assessment shall include an ascertainment of the extent to which production facilities, training and resources are available to the community to enable the community to best serve its interests in respect of those needs.
\n
Electronic programme guides.
\n
74.— (1) In this section “ electronic programme guide ” means any electronic means of providing information to members of the public in relation to the schedule of programme material the subject of any broadcasting service and which electronic means is an integral part of the distribution and reception system by which the broadcasting service is provided.
\n
(2)A person shall not prepare or make available for use an electronic programme guide otherwise than under and in accordance with an electronic programme guide contract.
\n
(3)The Authority may enter into a contract (“ electronic prog ramme guide contract ”) with a person whereby that person may prepare and make available for use one or more electronic programme guides.
\n
(4)An electronic programme guide contract shall include a condition requiring the holder of the contract to comply with rules under section 75 in respect of the electronic programme guide or guides prepared by him or her under that contract.
\n
(5)An electronic programme guide contract shall include a condition requiring the holder of the contract to ensure that the electronic programme guide or guides prepared under the contract prioritise within the guide or guides the positioning of each broadcasting service provided in the State by RTÉ, TG4 and the service provided under a television programme service contract by the television service programme contractor, where such broadcasting services are made available on the distribution and reception system, and a further condition that the electronic programme guide or guides may easily be used by a member of the public to access information in relation to the schedules of programme material the subject of each of the aforementioned broadcasting services.
\n
(6)A holder of an electronic programme guide contract shall not design an electronic programme guide in such a way as to result in a user of the guide experiencing difficulty in accessing the programme material supplied by a broadcasting contractor, a content provision contractor or a broadcaster under
\n
Part 7
\n
.
\n
(7)If the Authority considers it appropriate to do so in order that members of the public may keep themselves informed of the choice of programme material available for viewing on broadcasting services included as part of a multiplex (within the meaning of section 129 ) it may invite expressions of interest in the securing of an electronic programme guide contract.
\n
(8)The Authority may, having examined each of the expressions of interest received on foot of such an invitation, enter into a programme guide contract with the person whose proposals for such electronic programme guide or guides would, in its opinion, best serve the needs of the public.
\n
(9)The Authority may give a direction to RTÉ or a multiplex contractor requiring that RTÉ or the contractor include as part of a television multiplex an electronic programme guide prepared under an electronic programme guide contract referred to in subsection (8), and RTÉ or the contractor shall comply with the direction.
\n
(10)For the purposes of this section a teletext service shall not be regarded as an electronic programme guide.
\n
Rules with respect to programme guide contracts.
\n
75.— The Authority, after consultation with the Communications Regulator, may prepare rules with respect to the format in which the information in relation to schedules of programme material provided by electronic programme guides may be presented and the making of the arrangements that are necessary to meet the requirements of section 74
\n
(5).
\n
Transmission of broadcasting services by MMD system.
\n
76.— (1) The holder of a licence granted by the Communications Regulator being a licence that authorises the distribution of programme material by the means of a MMD system, shall distribute, by those means— (a) in case the MMD system used by that holder is, in whole or in part, an analogue system, the service provided under section 70 by the television service programme contractor and which that contractor requests the holder to so distribute, (b) in case the MMD system used by that holder is, in whole or in part, a digital system, each free-to-air service provided by RTÉ and by TG4 and the free-to-air service provided under section 70 by the television service programme contractor and which that body or contractor requests the holder to so distribute.
\n
(2)If a dispute arises between the holder of a licence referred to in subsection (1) and a body or contractor referred to in subsection (1) in relation to the placement by the holder, relative to the placement by him or her of another broadcasting service, on the system concerned of a free-to-air service provided by that body or contractor, being a placement made on a MMD system for the purposes of the holder’s complying with a request by that body or contractor under subsection (1), as the case may be, the dispute shall be referred to the Authority for its determination and the determination of the Authority in the matter shall be final.
\n
(3)The holder of a licence referred to in subsection (1) shall not impose a charge in relation to the making available to a person of any service referred to in subsection (1) if he or she imposes a charge on that person in relation to the making available of any other service to that person by means of the MMD system concerned.
\n
(4)Subject to subsection (5), the Authority may require the holder of a licence referred to in subsection (1) to distribute as a broadcasting service, by means of the MMD system concerned, the whole or part of the programme material supplied under one or more specified community content provision contracts the holders of which are members of the local community or community of interest that is served by the said system and who request the first-mentioned holder to so distribute the whole or, as the case may be, a part of that programme material.
\n
(5)Subsection (4) shall not apply if the system used by the holder of the licence concerned is an analogue MMD system.
\n
(6)A person of whom a requirement is made by the Authority under subsection (4) shall comply with that requirement.
\n
(7)The holder of a licence referred to in subsection (1) shall not impose a charge in relation to the making available to a person of any service referred to in subsection (4), pursuant to a requirement made of him or her under that subsection, if he or she imposes a charge on that person in relation to the making available of any other service to that person by means of the MMD system concerned.
\n
(8)The Authority shall report to the Minister on an annual basis in relation to the operation of this section.
\n
Must-carry and must-offer obligations.
\n
77.— (1) (a) In this Part “appropriate network” means an electronic communications network provided by a person (“appropriate network provider”) which is used for the distribution or transmission of broadcasting services to the public. (b) For the purposes of this section a multiplex contractor in relation to multiplexes referred to in section 132
\n
(1), (2), (3) and (4) or in section 133 is not an appropriate network provider by virtue of being a multiplex contractor or associated activities. (c) For the purposes of this section a holder of a licence referred to in section 76
\n
(1), the terms of which authorise the transmission by means of a MMD system of programme material, is not an appropriate network provider by virtue of being a licensee or associated activities. (d) For the purposes of this section a holder of a licence issued under section 59 or 121 , the terms of which authorise the transmission of programme material, is not an appropriate network provider by virtue of being a licensee under that section or associated activities.
\n
(2)Where the Authority is of the view, after carrying out a review and after consultation with the Communications Regulator, that a type or class of network system, rather than an individual network system, is not used by a significant number of end-users as their principal means of receiving transmissions of programme material, it may propose to the Minister the full or partial removal of the obligations set out in subsections (3), (4), (5), (6), (7), (8), (9) and (10) on that type or class of network system. The Minister may make an order to that effect.
\n
(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.
\n
(4)An appropriate network provider shall ensure the re-transmission, by or through his or her appropriate network, of each free-to-air television service provided for the time being by RTÉ, TG4 and the free-to-air service provided under section 70 by the television service programme contractor which that body or contractor requests the appropriate network provider to so re-transmit.
\n
(5)If a dispute arises between the appropriate network provider and RTÉ, TG4 or the television programme service contractor in relation to the placement by the appropriate network provider, relative to the placement by him or her of another broadcasting service, on the system concerned of a free-to-air service provided by that body or contractor, being a placement made on an appropriate network for the purposes of the appropriate network provider complying with a request by that body or contractor under subsection (4), the dispute shall be referred to the Authority for its determination and the determination of the Authority in the matter shall be final.
\n
(6)An appropriate network provider shall re-transmit each national sound broadcasting service provided for the time being by RTÉ and each sound broadcasting contractor and which RTÉ or the contractor concerned requests the holder to so re-transmit.
\n
(7)The appropriate network provider shall not impose a charge or allow a charge to be imposed in relation to the making available to a person of any service referred to in subsection (3), (4), (5) or (6) if he or she imposes a charge or allows a charge to be imposed on that person in relation to the making available of any other service to that person by means of the appropriate network concerned.
\n
(8)The Authority may require an appropriate network provider to transmit as a broadcasting service, by means of specified appropriate networks (whether analogue or digital) maintained by the appropriate network provider, the whole or part of the programme material supplied under one or more specified community content provision contracts the holders of which are members of the local community or community of interest that is served by the said appropriate network and who request the first-mentioned appropriate network provider to so transmit the whole or, as the case may be, part of that programme material.
\n
(9)A person of whom a requirement is made by the Authority under subsection (8) shall comply with that requirement.
\n
(10)An appropriate network provider shall not impose a charge or allow a charge to be imposed in relation to the making available to a person of any service referred to in subsection (8), pursuant to a requirement made of him or her under that subsection, if he or she imposes a charge or allows a charge to be imposed on that person in relation to the making available of any other service to that person by means of the appropriate network concerned.
\n
(11)Without prejudice to the requirements imposed under subsection (4), RTÉ, TG4 and the television service programme contractor shall ensure that their must-offer services are at all times offered for re-transmission (subject to agreement as to fair, reasonable and non-discriminatory terms of use) by means of any appropriate network that is available for reception in an intelligible form by members of the public in the whole of or in part of the State.
\n
(12)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 (subject to agreement as to fair, reasonable and non-discriminatory terms of use) by means of every satellite television service.
\n
(13)Arrangements entered into under subsection (12) 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.
\n
(14)Subject to the requirements of any contract made under section 74 any arrangement entered into under subsection (12) 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.
\n
(15)The Authority shall report to the Minister on an annual basis in relation to the operation of this section.
\n
(16)(a) An order under subsection (2) shall be laid before each House of the Oireachtas by the Minister as soon as may be after it is made. (b) Either House of the Oireachtas may, by resolution passed within 21 sitting days after the day on which an order was laid before it in accordance with paragraph (a), pass a resolution annulling the order. (c) The annulment under paragraph (b) of an order takes effect immediately on the passing of the resolution concerned but does not affect anything that was done under the order before the passing of the resolution.
\n
(17)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 under section 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.
\n
Offences (
\n
Part 6
\n
).
\n
78.— (1) A person who contravenes section 71
\n
(1)or 74
\n
(2)commits an offence.
\n
(2)A person guilty of an offence under subsection (1) is liable— (a) on summary conviction, to a fine not exceeding €5,000, or (b) on conviction on indictment, to a fine not exceeding €100,000.
\n
PART 7
\n
Public Service Broadcasting
\n
Chapter 1
\n
Public Service Broadcasting Corporations — Common Provisions Bodies corporate.
\n
79.— Each corporation continues as a body corporate with perpetual succession and power to sue and be sued and to acquire, hold and dispose of land.
\n
Seals of corporations.
\n
80.— (1) A corporation shall as soon as may be after the passing of this Act provide itself with a new seal.
\n
(2)The seal of a corporation shall be authenticated by the signature of the chairperson of the corporation, or some other member of it authorised by the corporation to act in that behalf, and the signature of an officer of the corporation authorised by the corporation to act in that behalf.
\n
(3)Judicial notice shall be taken of the seal of a corporation, and every document purporting to be an instrument made by the corporation and to be sealed with the seal (purporting to be authenticated in accordance with this section) of the corporation shall be received in evidence and be deemed to be such instrument without further proof unless the contrary is shown.
\n
Appointment of board.
\n
81.— (1) The number of members of the board of a corporation shall be 12 in number, of which— (a) 6 of them shall be appointed by the Government on the nomination of the Minister, (b) subject to subsection (2), 4 of them shall be appointed by the Government on the nomination of the Minister, (c) one shall be appointed by the Government following an election in accordance with section 83 , and (d) one shall be the director general of the corporation.
\n
(2)Where an appointment is to be made by the Government under subsection (1)(b) or under that paragraph arising from a vacancy referred to in section 84
\n
(12)— (a) the Minister shall inform the Joint Oireachtas Committee of the proposed appointment, (b) The Minister in respect of an appointment under subsection (1)(a) shall provide a statement to the Joint Oireachtas Committee indicating the relevant experience and expertise of the persons or person nominated by the Minister for appointment or appointed by the Government on the nomination of the Minister, and such other matters as the Minister considers relevant, (c) the Joint Oireachtas Committee shall within the period of 90 days of being so informed, advise the Minister of the names of the persons or name of the person it proposes that the Minister should nominate under subsection (1)(b) giving reasons, such as relevant experience and expertise, in relation to the proposed named persons or person, (d) the Minister shall have regard to the advice and may accept the proposed named persons or some of them or the named person or decide to nominate as he or she sees fit other persons or another person, and (e) inform the Joint Oireachtas Committee of his or her decision.
\n
(3)Not less than 5 of the members of the board of a corporation shall be men and not less than 5 of them shall be women.
\n
(4)The Joint Oireachtas Committee for the purposes of providing advice to the Minister under subsection (2) may establish a panel, for such duration, and consisting of such number of persons as the Joint Oireachtas Committee shall think proper.
\n
(5)Persons placed on a panel established under subsection (4) shall— (a) have experience of or have shown capacity in one or more of the matters stated in section 82
\n
(1), (b) in respect of TG4 comply with the requirements of section 82
\n
(2), and (c) be chosen with a view to representing the public interest in respect of public service broadcasting matters.
\n
(6)The Joint Oireachtas Committee shall, insofar as is practicable, endeavour to ensure that among the persons placed on a panel under subsection (4) there is an equitable balance between men and women.
\n
(7)The Joint Oireachtas Committee shall have sole responsibility for the selection and placing of candidates on a panel established under subsection (4).
\n
Criteria for board membership.
\n
82.— (1) A person shall not be appointed to be a member of the board of a corporation unless he or she has experience of or shown capacity in one or more of the following matters— (a) media affairs, (b) public service broadcasting, (c) broadcast content production, (d) digital media technologies, (e) trade union affairs, (f) business or commercial affairs, (g) matters pertaining to the development of the Irish language, (h) matters pertaining to disability, (i) arts, music, sport or culture, (j) science, technology or environmental matters, (k) legal or regulatory affairs, and (l) social, educational or community activities or Gaeltacht affairs, relevant to the oversight of a public service broadcaster.
\n
(2)A person shall not be appointed to be a member of the board of TG4 unless he or she is able to communicate proficiently in the Irish language.
\n
(3)Each member of the board of a corporation shall be appointed for a period not exceeding 5 years.
\n
(4)The Government in setting a term of appointment under subsection (3) shall consider the need for continuity of membership of the board of a corporation.
\n
(5)A member of the board of a corporation whose term of office expires by the effluxion of time shall be eligible for re-appointment.
\n
(6)A member of the board of a corporation shall not serve more than 2 consecutive terms of office.
\n
(7)A member of the board of a corporation may at any time resign his or her office by letter addressed to the Government and the resignation shall take effect on the date specified therein or upon receipt of the letter by the Government, whichever is the later.
\n
(8)Subsections (3) to (7) do not apply to the membership of the director general of the board of a corporation.
\n
Appointment of staff member.
\n
83.— (1) The Government shall appoint to be a member of the board of each corporation one member of staff of the corporation elected to be a staff member of the board in accordance with this section.
\n
(2)A member of the board of a corporation appointed under this section shall, subject to this section, be eligible for nomination as a candidate and for election at an election.
\n
(3)An election shall be held as soon as practicable after the passing of this Act or such longer period as may be agreed between the corporation and recognised trade unions and staff associations.
\n
(4)Subsections (5) to (16) apply for the purposes of an election.
\n
(5)(a) The secretary of a corporation (or a person selected by him or her after consultation with representatives of recognised trade unions or staff associations) shall be the returning officer for each election of a staff member of the board of the corporation. (b) The returning officer shall not be entitled to be nominated as, or to nominate, act as agent for or promote the interests of, a candidate at the election. (c) The returning officer may authorise any person to exercise designated functions on his or her behalf and paragraph (b) applies to any such person.
\n
(6)(a) A poll shall be conducted where there is more than one candidate. (b) Voting shall be by secret ballot and on the basis of proportional representation by means of a single transferable vote. (c) Presiding officers at the poll and polling clerks shall be appointed by the returning officer. (d) An election shall be held in accordance with arrangements made by the returning officer. (e) The returning officer shall be required to give due notice of these arrangements to the electorate and to designate premises as an election office.
\n
(7)(a) The returning officer shall fix the nomination day and give notice of the election not later than 4 weeks before that day. (b) The nomination day shall be not earlier than 4 weeks after the day on which eligibility of voters and candidates is determined in accordance with subsections (13) and (14), respectively.
\n
(8)The returning officer may declare a candidate elected if the number of candidates standing duly nominated does not exceed one.
\n
(9)If the nomination of candidates or any poll is interrupted or cannot be proceeded with the returning officer may adjourn the nomination or poll for such period as he or she considers appropriate to enable him or her, on its expiration, to proceed with or complete the nomination or poll.
\n
(10)On receipt of a notification from the returning officer of the name of the candidate elected or declared to be elected under subsection (8), the Government shall, in accordance with this section, appoint the candidate as a member of the board of the corporation.
\n
(11)The returning officer shall place the remaining candidates in order of votes credited to each at the last count in which he or she was involved.
\n
(12)A corporation shall bear the cost of holding an election except costs incurred by candidates on their own behalf.
\n
(13)Every employee of a corporation who, on the day specified by the returning officer and on the day on which the poll is taken— (a) is not less than 18 years of age, and (b) has been an employee of the corporation for a continuous period of not less than one year, shall be entitled to vote at an election.
\n
(14)(a) Every employee of a corporation who, on the day specified by the returning officer under subsection (13), is not less than 18 years of age and has been an employee of the corporation for a continuous period of not less than 18 months, shall be eligible to be nominated as a candidate at the election. (b) A candidate may be nominated by— (i) a recognised trade union or staff association or jointly by 2 or more such bodies, or (ii) a minimum of 20 eligible voters. (c) Nominations shall be made in the manner specified by the returning officer. (d) The returning officer shall rule on the validity of nominations and his or her decision shall be final.
\n
(15)The returning officer shall prepare and maintain a list of eligible voters and candidates.
\n
(16)The returning officer shall prepare and maintain a list of recognised trade unions and staff associations for the purposes of this section.
\n
(17)In this section “ election ” means an election held under this section for the appointment of a staff member to be a staff member of the board of a corporation.
\n
Terms and removal.
\n
84.— (1) There shall be paid to members of the board of a corporation, out of monies at the disposal of the corporation, such remuneration (if any) as the Minister, with the consent of the Minister for Finance, from time to time determines.
\n
(2)There shall be paid to members of the board of a corporation, out of monies at the disposal of the corporation, such allowances for expenses incurred by them in the performance of their functions as the Minister, with the consent of the Minister for Finance, from time to time determines.
\n
(3)Subject to this Act, a member of the board of a corporation shall hold office on such terms (other than the payment of remuneration and allowances for expenses) as the Minister, with the consent of the Minister for Finance, from time to time determines.
\n
(4)The Minister shall cause a statement in writing specifying the expertise or experience, terms of office and remuneration of the members of a corporation to be laid before both Houses of the Oireachtas and published in the Iris Oifigiúil.
\n
(5)A member of the board of a corporation may at any time be removed from membership of the board of the corporation by the Government if, in the Government’s opinion, the member has become incapable through ill-health of performing his or her functions, or has committed stated misbehaviour, or his or her removal appears to the Government to be necessary for the effective performance by the corporation of its functions, and only if, resolutions are passed by each House of the Oireachtas calling for his or her removal.
\n
(6)A member of the board of a corporation shall cease to be and shall be disqualified from being a member of the corporation where such member— (a) is adjudicated a bankrupt, (b) makes a composition or arrangement with creditors, (c) on conviction on indictment by a court of competent jurisdiction is sentenced to a term of imprisonment, (d) is convicted of an offence involving fraud or dishonesty, or (e) is disqualified or restricted from being a director of any company.
\n
(7)A member of staff of a corporation, who is appointed to serve on the board of the corporation or the director general of the corporation, shall cease to be a member of the board of the corporation on the cessation of his or her contract of service with the corporation.
\n
(8)Where a member of the board of a corporation fails— (a) for a consecutive period of 6 months, to attend a meeting of the corporation, unless the member demonstrates to the Minister’s satisfaction that the failure to attend was due to illness, or (b) to comply with the requirements of section 93 , or (c) to make a declaration in accordance with the requirements of section 17 of the Ethics in Public Office Act 1995 , the Minister may with the consent of the Government by order remove the member from office.
\n
(9)(a) An order made under subsection (8) shall be laid before each House of the Oireachtas as soon as practicable after it is made. (b) Either House of the Oireachtas may, within 21 sitting days after the day on which an order was laid before it in accordance with paragraph (a), pass a resolution annulling the order. (c) The annulment under paragraph (b) of an order takes effect immediately on the passing of the resolution concerned, but does not affect anything that was done under the order before the passing of the resolution.
\n
(10)If a member of the board of a corporation appointed by the Government, on the nomination of the Minister under section 81
\n
(1)(a) or following an election under section 83 , dies, resigns, becomes disqualified or is removed from office or for any other reason ceases to be a member of the board of the corporation, the Government on the nomination of the Minister, may appoint a person to be a member of the board of the corporation to fill the casual vacancy so occasioned and the person so appointed shall be appointed for the unexpired period of the term of membership of, and in the same manner as, the member of the board of the corporation appointed by the Government, on the nomination of the Minister or following an election under section 83 , who occasioned the casual vacancy.
\n
(11)In choosing a person to fill a casual vacancy occasioned by the cessation of membership of a member appointed by Government following an election under section 83 , the Government shall select the next eligible candidate, if any, under section 83
\n
(11). Where 2 or more candidates are credited with an equal number of votes, the Government shall select one of them by lot.
\n
(12)If a member of the board of a corporation appointed by the Government on the nomination of the Minister under paragraph (b) of section 81
\n
(1)dies, resigns, becomes disqualified or is removed from office or for any other reason ceases to be a member of the board of the corporation, the Government on the nomination of the Minister, the Minister having regard to the advice of the Joint Oireachtas Committee, may appoint a person to be a member of the board of the corporation to fill the casual vacancy so occasioned and the person so appointed shall be appointed for the unexpired period of the term of membership of, and in the same manner as, the member of the board of the corporation appointed by the Government on the nomination of the Minister under paragraph (b) of section 81
\n
(1), who occasioned the casual vacancy.
\n
Chairperson.
\n
85.— (1) The Government shall from time to time as occasion requires appoint, on the nomination of the Minister, a member of the board of a corporation to be chairperson of it.
\n
(2)A chairperson of a corporation shall, unless he or she sooner dies, resigns the office of chairperson or ceases to be chairperson under subsection (4), hold office until the expiration of his or her period of office as a member of the board of the corporation.
\n
(3)A chairperson of a corporation may at any time resign his or her office as chairperson by letter sent to the Government and the resignation shall, unless it is previously withdrawn in writing, take effect at the commencement of the meeting of the corporation held next after the corporation has been informed by the Government of the resignation.
\n
(4)Where a chairperson of a corporation ceases during his or her term of office as chairperson to be a member of the corporation he or she shall also cease to be chairperson of the corporation.
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(5)A member of staff of a corporation appointed by the Government to membership of the board of the corporation or a director general of a corporation shall not be appointed as chairperson of the corporation.
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Exclusions from board membership.
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86.— (1) Where a member of the board of a corporation is— (a) nominated as a candidate for election to the European Parliament, either House of the Oireachtas, or as a member of Seanad Éireann, (b) elected as a member of either House of the Oireachtas or the European Parliament, or (c) regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 as having been elected to that Parliament to fill a vacancy, he or she thereupon ceases to be a member of the corporation.
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(2)Where the person who is the director general or a member of the staff of a corporation is— (a) nominated as a candidate for election to the European Parliament, either House of the Oireachtas, or as a member of Seanad Éireann, (b) elected as a member of either House of the Oireachtas or the European Parliament, or (c) regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 as having been elected to that Parliament to fill a vacancy, he or she shall thereupon stand seconded from employment by the corporation and shall not be paid by, or be entitled to receive from, the corporation any remuneration or allowances in respect of the period commencing on such nomination or election, or when he or she is so regarded as having been elected as the case may be, and ending when such person ceases to be a member of either such House or that Parliament.
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(3)A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein or who is a member of the European Parliament, shall, while so entitled or such a member, be disqualified from becoming a member of the board of a corporation or the director general or a member of the staff of a corporation.
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(4)A person who is appointed a member of the Authority, the Contract Awards Committee or the Compliance Committee shall be disqualified from becoming or ceases to be a member of the board of a corporation or a director general or a member of staff of a corporation.
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(5)A person who holds employment, save for educational or performing creative work, or has an interest in an undertaking holding a contract under this Act, shall be disqualified from becoming or ceases to be a member of the board of a corporation.
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(6)A person who holds employment in RTÉ shall be disqualified from becoming or ceases to be a member of the board of TG4.
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(7)A person who holds employment in TG4 shall be disqualified from becoming or ceases to be a member of the board of RTÉ.
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(8)A person who holds membership of the board of RTÉ shall be disqualified from becoming or ceases to be a member of the board of TG4.
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(9)A person who holds membership of the board of TG4 shall be disqualified from becoming or ceases to be a member of the board of RTÉ.
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(10)Without prejudice to the generality of subsection (2), that subsection shall be read as prohibiting, inter alia, the reckoning of a period mentioned in that subsection as service with the corporation for the purposes of any superannuation benefits.
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Duties of board members.
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87.— Subject to the requirements of this Act every member of the board of a corporation shall perform his or her functions in such a manner as to— (a) represent the interests of viewers and listeners, (b) ensure that the activities of the corporation in pursuance of its objectives as set out in section 114
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(1)or 118
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(1)are performed efficiently and effectively, (c) ensure that the gathering and presentation by the corporation of news and current affairs is accurate and impartial, and (d) safeguard the independence of the corporation, as regards, the conception, content and production of programmes, the editing and presentation of news and current affairs programmes and the definition of programme schedules from State, political and commercial influences.
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Meetings.
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88.— (1) The board of a corporation shall hold such and so many meetings as may be necessary for the due performance of its functions.
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(2)At a meeting of the board of a corporation— (a) the chairperson of the board of a corporation shall, if present, be chairperson of the meeting, and (b) if and so long as the chairperson of the board of a corporation is not present or if the office of chairperson is vacant, the members of the board of a corporation who are present shall choose one of their number to be chairperson of the meeting.
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(3)Every question at a meeting of the board of a corporation shall be determined by a majority of the votes of the members of the board present and voting on the question, and in the case of an equal division of votes, the chairperson of the meeting shall have a second or casting vote.
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(4)The board of a corporation may act notwithstanding one or more vacancies among its members.
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(5)Subject to this Part, the board of a corporation shall regulate its procedure and practice by rules made under this section.
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(6)The quorum for a meeting of the board of a corporation shall be 7.
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(7)Subject to any rule made under subsection (5) meetings of the board of a corporation shall be capable of being held by telephone or other suitable electronic means whereby all the members of the board can hear and be heard.
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(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.
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Director general.
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89.— (1) A corporation shall from time to time appoint a person to be the chief executive officer of the corporation and who shall be known, and is in this Part referred to, as, in the Irish language, ardstiúrthóir or, in the English language, director general.
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(2)A director general shall— (a) carry on and manage, and control generally, the administration of the corporation, (b) act as editor-in-chief in respect of content published by the corporation in pursuance of its objects under this Act, and (c) perform such other functions (if any) as may be determined by the board of the corporation.
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(3)The consent of the Government is necessary before a corporation appoints or removes the director general of the corporation, or alters his or her remuneration or his or her terms and conditions of holding office.
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(4)The person who, immediately before the passing of this Act, was the director general of Radio Telefís Éireann, continues as director general of RTÉ.
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(5)The person who, immediately before the passing of this Act, was the chief executive officer of TG4, continues as director general of TG4.
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(6)A director general shall not hold any other office or employment or carry on any business without the consent of the board of the corporation.
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(7)A director general shall furnish the board of the corporation with such information (including financial information) in relation to the performance of his or her functions as the board of the corporation may from time to time require.
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(8)The functions of a director general may be performed in his or her absence or when the position of director general is vacant by such member of the staff of the corporation as may, from time to time, be designated for that purpose by the board of the corporation.
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(9)A director general shall, for the duration of his or her appointment, serve as an ex officio member of the board of his or her corporation.
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Staff.
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90.— (1) A corporation shall, as well as appointing a director general, appoint such and so many persons to be members of the staff of the corporation as it may, from time to time, determine but, subject to subsection (2), a person shall not be appointed under this section to be a member of staff of the corporation unless he or she has been selected by means of a public competition.
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(2)The requirement under subsection (1) of being selected by means of a public competition does not apply in relation to: (a) an appointment consisting of the promotion of a person who is already a member of staff of the corporation, (b) an office for which, in the opinion of the corporation, specialised qualifications not commonly held are required, or (c) an office to which appointments are made for limited periods only, being periods not exceeding 2 years.
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(3)A member of staff of a corporation shall hold his or her employment on such terms and conditions as the corporation from time to time determines.
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(4)A corporation may perform any of its functions through or by any of its members of staff duly authorised by the corporation in that behalf.
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Superannuation.
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91.— (1) A corporation, with the approval of the Minister and the consent of the Minister for Finance, shall make a scheme or schemes for the granting of superannuation benefits to or in respect of the members of staff, including the director general, of the corporation.
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(2)A superannuation scheme shall fix the time and conditions of retirement of all persons to or in respect of whom superannuation benefits are payable under the scheme or schemes and different times and conditions may be fixed in respect of different classes of persons.
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(3)A corporation may, with the approval of the Minister and the consent of the Minister for Finance, make a scheme amending or revoking a superannuation scheme including a scheme under this section.
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(4)A superannuation scheme submitted by the corporation under this section shall, if approved by the Minister with the consent of the Minister for Finance, be carried out by the corporation in accordance with its terms.
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(5)Each superannuation scheme shall include a provision for appeals from a decision relating to a superannuation benefit under the scheme.