L.S. 460.12 Ordni dwar il-Protezzjoni tal-Interess tal-Konsumaturi fir-Reklamar, l-Isponsorjar u t-Telebejgħ Inġunzjoni dwar ix-Xandir Televiżiv)

(1)In this Order, unless the context otherwise requires - "the Act" means the Broadcasting Act; Citation. Interpretation. Cap. 350. "the competent authority" means the Broadcasting Authority as established by the Constitution of Malta; "the Directive" means the provisions of Directive 98/27/EC of the European Parliament and of the Council of 19 th May, 1998 on injunctions for the protection of consumers’ interests; "the Television Without Frontiers Directive" means Articles 10 to 21 of Council Directive 89/552/EEC of 3 rd October, 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ L298, 17.10.1989, p. 23) as amended by Directive 97/36/EC (OJ L202, 30.7.1997, p. 60); "qualified entity" means any body or organization which, being properly constituted according to the law of a Member State, has a legitimate interest in ensuring that the provisions referred to in article 3 are complied with and, without prejudice to the generality of the foregoing, includes: (a) a registered consumer association within the meaning of Part IV of the Consumer Affairs Act; (b) one or more independent public bodies, having a legitimate interest in ensuring the protection of the collective interests of consumers of television advertising, sponsorship and teleshopping in other Member States or EEA States in which such bodies exist; (c) voluntary organisations in other Member States or EEA States whose purpose is to protect the interests referred to in paragraph (a) of this definition in accordance with the criteria laid down by their national law; *See article 1

(2)of this Order as originally promulgated. Cap. 378. 2 [ S.L.460.12 ADVERTISING, SPONSORSHIP AND TELESHOPPING (PROTECTION OF CONSUMERS INTEREST) (TELEVISION BROADCASTING INJUNCTION) (

1. d)organisations recognised by the competent authority as collectively representing professional broadcasting services; or (
2. e)any qualified entity from a Member State or EEA State included in the list of qualified entities; "European Community" means the organisation established by the Treaty of Rome in 1957 and amended institutionally and otherwise in 1986 by the Single European Act, in 1993 by the Treaty on European Union, in 1997 by the Treaty of Amsterdam and in 2001 by the Treaty of Nice and as amended by accession agreements and as may be further amended from time to time; "the Commission" means the Commission of the European Community; "list of qualified entities" means the list compiled and updated by the Commission and published in the Official Journal of the European Communities listing the qualified entities in Member St a t e s a n d E E A St a t e s i n a c c o r d a n c e w i t h A r t i c l e 4 o f t h e Directive; Cap. 12. "Court of Appeal" means the Court of Appeal sitting in its inferior jurisdiction as constituted in terms of article 41

(9)of the Code of Organization and Civil Procedure; "EEA State" means any State which is a contracting party to the agreement on the European Economic Area signed at Oporto on the 2 nd May, 1992 as amended by the Protocol signed at Brussels on 17 th March, 1993 and as amended from time to time; "Member State" means a member of the European Community.

(2)Words and expressions used in this Order which are also used in the Act shall have the same meanings as in the Act. Object.

1. The object of this Order is to implement the provisions of the Directive, as applicable to television advertising, sponsorship and teleshopping contained in the Television Without Frontiers Directive as transposed in the Act, and shall be interpreted and applied accordingly. Scope.
2. This Order applies to any television advertising, sponsorship and teleshopping referred to the Television Without Frontiers Directive as transposed by the Act when advertising, sponsorship and teleshopping is broadcast by any person licensed to provide broadcasting services under the provisions of the Act. Application for compliance orders by qualified entities. 5.

(1)Where a qualified entity wishes to seek a compliance order, it shall submit its written application to the competent authority. In its application, it shall satisfy the competent authority that it has tried to achieve the cessation of the infringement in consultation with either the defendant or both the defendant and another qualified entity of the Member State or EEA State in which the injunction is sought. The competent authority shall only entertain a written application if the qualified entity shows to its satisfaction that the cessation of the infringement was not achieved ADVERTISING, SPONSORSHIP AND TELESHOPPING (PROTECTION OF CONSUMERS INTEREST) (TELEVISION BROADCASTING INJUNCTION) [ S.L.460.12 3 within two weeks after the request for consultation was received.

(2)Where the qualified entity is from another Member State or EEA State, the competent authority shall treat the list of qualified entities published by the Commission as conclusive proof of the legal capacity of the legal entity to present such written application in Malta.

(3)The competent authority shall, at the request of a qualified entity from Malta, communicate to the Commission the name and objects of such entities and that such qualified entity should be added to the list of qualified entities so as to facilitate the redress of inter-community infringements.

(4)Before proceeding for the issue of a compliance order under article 6, the competent authority shall, if it considers it to be possible and reasonable to do so, seek first to achieve voluntary compliance by a person licensed to provide broadcasting services under the provisions of the Act and other persons involved, in accordance with this Order, the Act or any other law dealing with consumer rights and protection.

(5)For the purposes of this Order, an infringement occurs when any act is committed contrary to the Television Without Frontiers Directive as transposed by the Act which harms the collective interests of consumers. 6.

(1)Where the competent authority feels it reasonably appropriate or necessary for the protection of consumers, it may, on a written application to it by a qualified entity, issue a compliance order against any person licensed to provide broadcasting services under the provisions of the Act for one or more of the following purposes: (

1. a)ordering any such person to cease broadcasting of any advertisement, sponsorship or teleshopping which the competent authority considers to be in breach of the provisions of the Act regulating advertisements, sponsorship and teleshopping; (
2. b)requiring such person to take any measures specified in the compliance order, within the time specified in the compliance order to ensure that this Order is complied with; (
3. c)requiring such person to cease or desist from committing a breach of this Order or of the provisions of the Act regulating advertisements, sponsorship and teleshopping.

(2)The competent authority shall, when issuing a compliance order under this regulation (

1. a)serve a copy of the compliance order on each person against whom the order is made; (
2. b)include with the compliance order, information about the right to institute an action before the Court of Appeal, in accordance with article 9; and Issue of compliance orders. 4 [ S.L.460.12 ADVERTISING, SPONSORSHIP AND TELESHOPPING (PROTECTION OF CONSUMERS INTEREST) (TELEVISION BROADCASTING INJUNCTION) (
3. c)briefly state the reasons for issuing the compliance order, which reasons shall be notified to each person against whom the compliance order is issued and, if any, to the qualifying body on whose application the compliance order is issued.

(3)No precautionary warrant or other order under any other l a w s h a l l b e i s s u e d b y a n y co u r t o r t r i b u n a l r e s tr a i n i n g o r restricting the competent authority from issuing a compliance order under this Order. Discretion of competent authority to issue a compliance order. 7.

(1)It shall be at the discretion of the competent authority whether or not to issue a compliance order after a written request by a qualified entity has been made to it in terms of article 6

(1).

(2)If the competent authority decides not to issue a compliance order after an application has been made to it by a qualified entity, it shall, within seven days from the date of its decision, notify in writing the qualified entity and the persons against whom the compliance order is requested with its decision stating the reasons therefor.

(3)A qualified entity may within fifteen days from the date of notification upon it of the decision of the competent authority not to issue a compliance order, institute an action before the Court of Appeal for the issue of an order requiring the competent authority to issue a compliance order under article 6. The persons against whom the compliance order is requested to be made shall be parties to the suit, and it shall be the duty of the qualified entity to notify such persons accordingly.

(4)In the exercise of its functions and powers under this Order, the Court of Appeal shall in all cases act as expeditiously as possible. Compliance order to take immediate effect. 8. A compliance order issued by the competent authority shall come into force with immediate effect. Appeal from a compliance order. 9.

(1)A person against whom a compliance order has been made, may, within fifteen days from receipt of notification of the compliance order, appeal in writing to the Court of Appeal for the revocation or amendment of the compliance order, giving detailed grounds for the request. Such appeal may be made only on the following grounds: (a) the competent authority has, in its decision wrongly applied any of the provisions of this Order; or (b) the decision of the competent authority constitutes an abuse of discretion or is manifestly unfair.

(2)The Court of Appeal may confirm, change or cancel the compliance order on any terms or conditions it considers appropriate.

(3)Where an appeal is instituted under sub-article

(1), the compliance order shall remain in force unless the Court of Appeal specifically orders that the compliance order shall be stayed ADVERTISING, SPONSORSHIP AND TELESHOPPING (PROTECTION OF CONSUMERS INTEREST) (TELEVISION BROADCASTING INJUNCTION) [ S.L.460.12 5 pending the outcome of the appeal, subject to such conditions and amendments as it may determine. In any such instance, the competent authority may request the Court of Appeal to make an interim compliance order, ordering that the compliance order shall, subject to such modifications as the competent authority may suggest, continue in force pending the final determination of the case instituted in accordance with sub-article

(1). An interim compliance order shall expire upon the final determination of the case.

(4)Subject to this Order, the provisions of the Code of Organization and Civil Procedure shall, mutatis mutandis, govern appeals to the Court of Appeal. Cap.

2. The competent authority, when issuing a compliance order under article 6, shall not be required to prove: No need to prove actual loss, etc. (a) actual loss or damage; or (b) actual recklessness, negligence or fault on the part of the person against whom the order is made. 11.

(1)The competent information of the public: authority may, for the better (

1. a)publish a copy of the compliance order made under article 6 against any such person, in full or in part; or Competent authority may require publication. (
2. b)order any person licensed to provide broadcasting services under the provisions of the Act to publish a corrective statement in relation to any contravention of this Order; or (
3. c)take both measures mentioned in paragraphs (
4. a)and (b).

(2)Publication in terms of sub-article

(1)shall be made at the expense of the person served with such notice and the provisions of article 41

(7)of the Act shall, mutatis mutandis, apply to the person licensed to provide broadcasting services under the provisions of the Act. Where such publication is not effected as aforesaid, the competent authority may proceed to effect publication itself, in such medium as it considers appropriate, in which case it shall have the right to recover from the person on whom the notice is served, any expenses incurred, as a civil debt, constituting an executive title for the purposes of Title VII of Part I of Book Second of the Code of Organization and Civil Procedure as if payment of the amount of the civil debt has been ordered by a judgment of a court of civil jurisdiction.

1. The competent authority may in writing authorise the chairman or a member thereof or any of its officers and employees or any other person to perform any of its functions in relation to the enforcement of this Order or exercise any power granted to it under these provisions. Any such authorized person shall, when required, prod uc e t he w ri tt en au th ori sation signed by the competent authority. Cap.
2. Delegation of powers of the competent authority. 6 [ S.L.460.12 Obtaining information. ADVERTISING, SPONSORSHIP AND TELESHOPPING (PROTECTION OF CONSUMERS INTEREST) (TELEVISION BROADCASTING INJUNCTION) 13.

(1)The competent authority may, for the purpose of discharging its functions under this Order, require any person to provide any information in any manner, including by: (

1. a)answering any questions, orally or in writing; or (
2. b)producing any item as aforesaid as the competent authority may consider to be necessary.

(2)Any such person shall promptly comply with any such request. Failure to comply with Order. 14.

(1)A person licensed to provide broadcasting services under the provisions of the Act, shall be liable to an administrative penalty in terms of article 15 if such person (

1. a)fails to observe any other provision in this Order; (
2. b)fails to comply with a compliance order issued under this Order; or (
3. c)refuses or fails to furnish information as required under this Order or else provides false or misleading information.

(2)A person licensed to provide broadcasting services under the provisions of the Act, shall be liable to an administrative penalty if such person (

1. a)wilfully obstructs, assaults, threatens, resists or interferes with the competent authority or any person delegated by it in terms of article 12 or any public officer in the exercise of his duties under this Order or attempts so to do; or (
2. b)uses threatening, abusive or insulting language to the competent authority or any person delegated by it in terms of article 12 or any public officer in the course of duties. Administrative penalties. Cap. 350. S.L. 350.07 Other administrative sanctions. 15.

(1)In the event of liability arising in terms of article 14 the Chief Executive of the competent authority may by notice in writing request the competent authority to impose on the person licensed to provide broadcasting services under the provisions of the Act an administrative penalty in terms of article 41 of the Act and the procedure laid down in that article shall mutatis mutandis apply.

(2)In issuing the charge against such person, the Chief Executive of the competent authority shall also comply with the p r o c e d u r e s e t ou t i n t he S p e c i a l A d m i n is t r a t i v e P r o c e d u r e Regulations. 16. Nothing in this Order shall prejudice or limit the exercise of the powers of the competent authority to take administrative measures or impose penalties under the Act, against a person licensed to provide broadcasting services under the provisions of the Act who has contravened any provisions of this Order or has failed to satisfy or comply with any obligation or condition to ADVERTISING, SPONSORSHIP AND TELESHOPPING (PROTECTION OF CONSUMERS INTEREST) (TELEVISION BROADCASTING INJUNCTION) [ S.L.460.12 7 which he may be subject under the Act. 17.

(1)Where an order or notice is required or authorised to be served under this Order it shall be served in any of the following manners: (

1. a)by delivering it, or by sending it by registered mail to the person on whom it is to be served at such person’s place of residence, office or place of work; or (
2. b)in the case of a body corporate or other body of persons, by delivering it to an officer or servant thereof at the registered office or any other place of business, or sending it in a registered letter addressed to any such office.

(2)In any case where it is not reasonably possible to effect service in any manner stated in sub-article

(1), service may be effected by publishing a summary of such notice in the Gazette. Service of orders or notices.