Leading broadcasters agree that a court decision slamming the Broadcasting Authority’s dual role as media prosecutor and judge is a landmark ruling that has been long in coming.
There had to come a stage where somebody put a stop to this situation
The case was initiated by Smash Communications eight years ago after the station was fined by the BA for overrunning its advertising time in a TV discussion programme. The TV station had to pay the fine or contest it before the BA board.
Speaking after Judge Raymond Pace upheld the company’s arguments last week, Emmy Bezzina, the lawyer who fronted the case, said the ruling set “a legal precedent”.
The authority is appealing the judgement but for Lou Bondi, a director of Where’s Everybody, the ruling vindicates his media company’s long held belief that the regulator could not be prosecutor and judge at the same time.
“If the judgement is upheld, the BA will have to change its modus operandi entirely,” he said, blaming the current state of affairs on the fact that the BA board is made up of representatives of the two major political parties and not of civil society.
It is a sentiment shared by former Labour Minister and veteran programme presenter Joe Grima.
“There had to come a stage where somebody put a stop to this situation,” he said, welcoming the judgement as “a first step in the right direction”.
He was not surprised that the BA appealed the case because like other institutions, including the two major political parties, “it does not want to lose its power”.
Hitting out at the composition of the authority, Mr Grima said the presence of the two major political parties on the board was “an outdated and incongruous” element of society and urged lawmakers to change the Constitution.
“The BA has to be reorganised and I expect legislators to undertake constitutional reforms,” he said.
But historian Dominic Fenech, a former BA board member for several years, believes the judgement may hamper the authority’s regulatory function.
In comments posted underneath the judgement report on timesofmalta.com, he argued that it was self-evident that no one could be judge in his own case but insisted the situation was different with a constitutional authority.
“A constitutional regulatory body does not have an own case, inasmuch as it does not have its own interests involved, beyond the obligation of applying the law,” Prof. Fenech said.
The judgement, he added, meant the BA may not perform its duty as a regulator when it notices an offence but may do so if someone else brings the offence to its attention.
Whether the BA’s composition or the way it operates will change still has to be seen but Joe Zammit Maempel, a lawyer, said there was a significant difference between the BA’s functioning and that of other regulatory bodies.
Drawing from his experience as a former chairman of the Gaming Authority, he said the gaming regulator had the power to levy administrative fines if operators breached regulations.
The operator could admit guilt and simply pay the fine or else decide to contest the regulator’s decision. If the operator contests the fine, the authority would then take the matter to court.
“In this way final judgement is passed by the courts and not by the Gaming Authority,” Dr Zammit Maempel said.
However, while gaming regulations are issued by legal notice, giving them the force of law, BA policies are not.
“Operators can only be taken to court by regulators if they breach the country’s law,” Dr Zammit Maempel said.
When contacted, Anton Attard, the national broadcaster’s chief executive, said PBS had discussed the ruling internally but wanted to wait for the outcome of the appeal before commenting.
In his landmark ruling, Mr Justice Pace said that although the regulator had the right to issue charges on the basis of the Broadcasting Act, it did not have the right to judge the case itself. As a result, the case against the Smash TV programme could not be heard by the BA.
The court said there should be a legislative remedy to ensure that the judging role was totally independent from the authority so that “justice is not only done, but seen to be done”.
ksansone@timesofmalta.com