Telecoms & Media in Malta | 2018 GTDT Edition

Authors: Dr. Andrew J Zammit

Communications policy

Regulatory and institutional structure

The regulatory framework for telecommunications in Malta is based on the following primary and secondary legislation:

• the Malta Communications Authority Act (Chapter 418, Laws of Malta);
• the Electronic Communications (Regulation) Act (Chapter 399, Laws of Malta);
• the Data Protection Act (Chapter 440, Laws of Malta);
• the Electronic Commerce Act (Chapter 426, Laws of Malta);
• Electronic Communications Networks and Services (General) Regulations (Subsidiary Legisation (SL) 399.28, Laws of Malta) (ECNSR);
• Roaming on Public Mobile Network Regulations (SL 399.29, Laws of Malta);
• the Utilities and Services (Regulation of Certain Works) Act (Chapter 81, Laws of Malta);
• Rights of Way for Utilities and Services (Fees) Regulations (S.L 499.37, Laws of Malta);
• General Authorisations (Radiocommunications Apparatus) Regulations (SL 40.09, Laws of Malta);
• Single European Emergency Call Service (‘112’ number) and the European Harmonised Services of Social Value (‘116’ number range) Regulation (SL 399.43, Laws of Malta);
• Authorisation of Frequency Use (Provision of 2GHz Mobile Satellite Services) Regulations (SL 399.44, Laws of Malta); and
• the Processing of Personal Data (Electronic Communications Sector) Regulations (SL 440.01).

There are no restrictions on foreign companies commencing operations in the Maltese telecommunications market and in fact all of the larger telecoms players in Malta have material or controlling foreign interests.

Authorisation/licensing regime

The current authorisation or licensing regime is divided into three broad categories, namely:

• the General Authorisation for the provision of Networks and Services;
• spectrum licensing; and
• radio communications equipment licensing.

General Authorisation for the provision of Networks and Services

In terms of the Electronic Communications Act (Chapter 399 of the Laws of Malta), undertakings wishing to provide electronic communications are required to notify the Malta Communications Authority for a general authorisation to provide such services.

Furthermore, general authorisations established by the ECNSR shall include the following:

• the establishment and operation of a public communications network;
• publicly available telephone services;
• the provision of television and radio distribution services;
• the provision of non-public electronic communications services;
• publicly available telephone directories and directly enquiry services; and
• private electronic communications networks and, or services.

Before, commencing its service, an undertaking wishing to provide an electronic communications network or an electronic communications service must first notify the Malta Communications Authority (the  MCA) by completing the relevant notification form. The form must include all the requisite information provided for under the Regulation 66 of the ECNSR.

Once the MCA acknowledges the undertaking’s submission of notification, the undertaking concerned is deemed to be authorised to provide an electronic communications network or service, however, subject to the conditions established in the ninth schedule to the ECNSR. Moreover, administrative charges are specified in the Eight Schedule (Part A) within the ECNSR.

The duration of a general authorisation to provide an electronic communications service is unlimited, subject to ongoing compliance with the conditions attached to it. If there is a breach of these conditions, the MCA can take any actions that) it deems to be suitable.

Spectrum licensing

In line with the Electronic Communications Act an authorisation is required for the right to use radio frequencies. Such authorisation is essential to avoid harmful interference, to ensure technical quality of service, and to safeguard the efficient use of spectrum, amongst other reasons provided for under Regulation 40 of the Electronic Communications Act.

Moreover, it is necessary to note that spectrum licensing is further split up into three:

• test licence application form – this form is to be used for the grant of use of spectrum for test purposes;
• trial licence application form – this form is to be used for the grant of use of spectrum for trial purposes; and
• generic spectrum application – formal request for spectrum assignment for the provision of electronic communications networks or services.

The duration of a spectrum licence varies, depending on the type of licence. A licence can be issued subject to such terms, conditions and limitations as listed in Part B of the Seventh Schedule to the ECNSR.

Moreover, administrative charges are specified in the Eight Schedule (Part A) within the Regulation.

Radio-communications equipment licensing

Apart from the above-mentioned licensing categories, Part IV of the Electronic Communications Act addresses the necessity of obtaining a licence for the installation or use of radiocommunications equipment, unless the equipment is covered by a general authorisation or licence exempt. Such licence exemptions are contemplated by the Radiocommunications Apparatus Exemption Order (SL 399.41). This particular order provides a list of Radiocommunications apparata that are exempted from the requirements of article 30 of the Electronic Communication (Regulation) Act.

The grant of individual licences is subject to the payment of the applicable licence fees to the MCA.

The MCA provides for the following application forms:

• Application forms for the grant of rights to install or use radiocommunications equipment (eg, aeronautical, amateur radio, private mobile radios, radio links, satellite uplink, etc); and
• Notification forms for the installation or use of certain radiocommunications equipment covered by a general authorisation (eg, VHF marine, EPIRBs, etc).

Licences granted under this category may be issued in accordance to the terms, conditions and limitations provided for by the MCA. Furthermore, a licence may also include specific limitations relating to the apparatus that may be installed or utilised by the licensee, and it may also specify the places where such apparatus may be utilised. Notably, such a licence may be rescinded, and the terms and conditions or limitation maybe varied by a notice issued by the MCA in writing, either directly to the licensee or by a general notice published in the Government Gazette.

Unless this type of licence is revoked by the Authority, it shall remain in force for such a period as may be specified in the licence.

With regards to public Wi-Fi services, the MCA in association with other entities has been working on a nationwide project with the intention of setting up free Wi-Fi internet points on the Maltese islands. The project was launched with the aim of boosting the use of Internet through the use of portable devises. This service complements the appropriate security measures, which mainly include filters against unlawful and improper content.

Ex-ante regulatory obligations

With respect to ex-ante regulatory obligations it is necessary to turn our attention to the Commission Recommendation of 17 December 2007, were the European Commission identified seven markets in which ex ante regulation may be justified. Out of the seven identified markets some are considered by the MCA to be effectively competitive and therefore not requiring regulation.

Since Malta is a full member of the European Union, the remedies available to the MCA are in accordance with what national regulatory authorities are permitted to inflict on operators in accordance with the EU regulatory framework. The remedies that may be imposed by the MCA are listed in the ECNSR, which include may include an obligation of transparency, obligation of non-discrimination, obligation of accounting separation, obligations relating to price control and cost accounting.

Structural or functional separation

The notion of functional separation as contemplated under articles 13A and 13B of the Access Directive has been transposed into Maltese legislation and such provisions are currently provided for under Part IV of the ECNSR. Indeed, it provides for rules requiring vertically integrated undertakings to situate activities relating to the wholesale provision of relevant access products in an autonomously functioning business entity. This separate entity shall supply access products and services to all undertakings, including to other business entities within the parent company on the same timescales, terms and conditions.

Moreover, when the MCA decides to impose this type of obligation, it must first present a proposal to the European Commission, and such a proposal should include all the requisite information that ultimately will enable the European Commission to reach a decision. Once such a decision is reached, the MCA shall undertake to carry out a fully fledged analysis of the different markets related to the access network.

Universal service obligations and financing

Part V of the ECNSR provides for universal service obligations (USO) and the first provision under this Part states that the MCA is responsible for guaranteeing such USOs to all end users on the Maltese islands, however, the MCA must take into consideration other factors such as specific national conditions and price affordability. Moreover, it shall be responsible for determining the most effective and suitable approach for ensuring the fulfilment of universal services, while considering the principles of transparency, proportionality, objectivity and non-discrimination. It is pertinent to note that the universal service obligations apply to those undertakings that are designated by the MCA, and including the following obligations:

• provision of access at a fixed location to a public telephone network and access to publicly available telephone services, as well as the provision of functional internet access, while taking into consideration the predominant technologies utilised by the majority of subscribers and to technological viability;
• the availability of an exhaustive directory of subscribers to publicly available telephony services is made available to all end users and a comprehensive and up-to-date telephone directory enquiry service is made available to all end users, including users of public pay telephones;
• the availability of public pay telephones or other analogous services, as well as the availability of the necessary facilities to be able to connect to any national emergency call numbers, without a cost; and
• the provision of specific measures for disabled users with a view of accessing telecoms service at affordable prices.

The MCA shall be responsible for monitoring the affordability of tariffs, while taking into account individual with low incomes and special social needs.

The ECNSR also caters for the financial aspects of providing a USO. In fact, a designated undertaking obliged to provide any of the above-mentioned universal services may submit a written request to obtain funding for the net costs of meeting these particular obligations. The undertaking’s request must be supplemented by the necessary information in order for the MCA to determine as to whether an obligation may represent an unfair burden on the undertaking itself, and hence it will calculate the net costs of its provision based upon certain criteria. Consequently, where the MCA finds that an undertaking is subject to an unfair burden, it shall introduce a compensation mechanism and it shall also resort to sharing the net cost of USOs between service providers. A sharing mechanism shall be set up in accordance to established principles and in line with the principles provided for under Part N of the Sixth Schedule within the ECNSR.

Number allocation and portability

Number allocation in Malta is contemplated under the ECNSR and within several documents published by the MCA itself. For instance, the ‘National Numbering Conventions, Responses to Consultation and Decision – February 2010’, tackles number allocation and defines the concept as ‘an allocation is the granting of rights of use over numbers from designated number ranges to authorised providers. Allocation of numbers grants a right to use the allocated numbers in accordance with the Numbering Plan but it is not a property transfer.’ Simultaneously, it defines the National Number Plan as specifying the ‘subdivision of the Maltese numbering space, the purposes for which each number range may be used and the conditions attaching to such use.’

Indeed, the MCA is responsible for establishing procedures to guarantee that the allocation of numbers is carried out in an objective, transparent, non-discriminatory, equitable and well-timed manner. Moreover, the number plan includes a list of the available numbering ranges and the requisites and standards that apply to them. If these ranges are made available, a prospective applicant can apply for numbers by either submitting an application for new number or number blocks or by submitting an application for additional numbers or number blocks.

Moreover, it is necessary to note that the ECNSR empowers the MCA to either revoke, suspend or change number use, for the following instances:

• when such revocation, suspension or change is requested by the undertaking;
• when international harmonisation necessitates such revocation, suspension or change;
• in cases of serious and repeated breaches of the general authorisation conditions and, or the conditions related to rights of use; and
• when necessary as part of a change to the national telephone numbering plan: Provided that the Authority shall give an appropriate period of notice to any party affected by such revocation, suspension or change in numbering use.

With regard to number portability, the ECNSR provides for the facility of changing a provider. Essentially, an undertaking shall make sure that all subscribers that were assigned numbers from the national telephone numbering plan may, upon request, keep their number or numbers independently of the undertaking providing the service. This pertains:

• to the case of geographic numbers at a specific location; and
• in the case of non-geographic numbers at any location.

However, the aforementioned facility provides an exemption with respect to the porting of numbers between networks providing services at a fixed location and mobile networks.

Customer terms and conditions

Part VI of the ECNSR on end-user interests and rights, specifically Regulation 35 conforms to the provisions laid out under the EU framework and it requires those undertakings that provide connection to a public communications network and, or publicly available electronic communications services, to ensure that they provide their subscribers with a contract that shall specify in a clear and comprehensive manner information regarding access, details of prices, tariffs and other applicable charges, information relating to the imposition of certain conditions, details regarding the service quality levels offered, among other standard terms.

Moreover, subscribers must be given at least 30 days prior notice of the undertaking’s intention to modify the contractual terms and in such circumstances, a subscriber may dissolve from the contract without incurring a penalty. Additionally, undertakings must offer consumer contracts of 12 months and cannot offer consumer contracts exceeding 24 months.

Net neutrality

Regulation 2015/2120 laying down measures concerning open internet access (commonly known as the Roaming Regulation) entered into force on 15 June 2017. The Regulation was accompanied by a set of Guidelines published by the Body of European Regulators for Electronic Communications that aim to guide national regulatory authorities when it comes to implementing these rules. The Regulation permits the use of ‘reasonable traffic management practices’ in order to avoid an ‘impending network congestion’. Nevertheless, the Guidelines clarify that although the monitoring of generic content, such as the IP packet header, is allowed, the monitoring of specific content (such as the information provided by the user himself) is prohibited.

The Regulation provides that specialised services, that is, ‘services other than internet access services which are optimised for specific content, applications or services, or a combination thereof’ fall outside the scope of the Regulation and thus users of specialised services are not protected by the open internet rules as provided in these Regulations.

Zero rating remains a thorny issue under the Regulation, as although some forms of zero rating are allowed, others are prohibited. Zero rating is prohibited when it is applied to specific applications or services. Once a data cap is reached, and all applications are throttled, the zero-rated applications must also be throttled, otherwise, this would be an infringement of the Regulation. On the other hand, zero-rating may be applied to an entire category of applications without being in contravention of the Regulation. Therefore, the latter form of zero rating is allowed.

With regards to bandwidth throttling, the Regulation holds that bar the exception of reasonable traffic management, blocking, slowing down, altering, restricting, interfering with, degrading or discriminating between specific content, applications or services, or specific categories thereof, are all prohibited.

It is pertinent to note that EU Regulation 2015/2120 concerning open internet access, amending the directive on universal service and users’ rights relating to electronic communications networks and amending the roaming regulation was implemented into the Malta Communications Authority Act through Act XVIII of 2016. The MCA also took the opportunity to publish a ‘Report on the Malta Communications Authority’s work on the implementation of the EU Net Neutrality Regulation.’

Platform regulation

Currently, there is no specific legislation or regulation in Malta relating specifically to digital platforms.

Next-Generation-Access (NGA) networks

There are currently no specific regulations obligations in place regarding NGA networks. However, according to the National Digital Strategy 2014-2020, the ‘MCA regulatory regime will foster innovation and investment to support the development of NGA Networks in Malta. It will have the objectives of ensuring competition and affordable access to these networks.’ Additionally, in 2011 the MCA had also published an Outline Strategy for the Regulation of Next Generation Access Networks, which includes a detailed overview of the MCA’s regulatory perspective with regard to NGA networks.

Nevertheless, with respect to infrastructure access, Part III of the Utilities and Services (Regulation of Certain Works) Act (Cap 81, Laws of Malta), transposes the provisions of EU Directive 2014/61/EU on measures to reduce the cost of deploying high-speed electronic communications networks. Moreover, it is also important to shed light on article 12 and 12A of the Electronic Communications (Regulation) Act (Cap 399 of the Laws of Malta), which specifically deal with facility sharing and access to in-building physical infrastructure.

Data protection

It is pertinent to note that the Processing of Data (Electronic Communications Sector) Regulations (SL 440.01) regulates data protection in the electronic communications sector. Regulation 20 establishes that services providers must retain certain categories of data necessary to:

• trace and identify the source of a communication;
• identify the destination of a communication;
• identify the date, time, and duration of a communication;
• identify the type of communication;
• identify users’ communication equipment or what purports to be their equipment; and
• identify the location of mobile communication equipment.

Cybersecurity

Yes. Maltese legal instruments dealing with various aspects of cybersecurity include the following:

• the Maltese Criminal Code provisions dealing with cybercrime under a chapter heading entitled ‘Of Computer Misuse’;
• Processing of Personal Data (Electronic Communications Sector) Regulations (Subsidiary legislation 440.01);
• the Electronic Communications Networks and Services (General) Regulations (Subsidiary Legislation 399.28); and
• the Council of Europe Cybercrime Convention, to which Malta has been a signatory since 2001, and which Convention was ratified in April 2012.

Big data

There are currently no specific laws or regulations in place that govern big data, however, the Malta Information Technology Agency had published a National Data Strategy, which specifically targets the management of data across the whole public administration. Nevertheless, the Strategy also includes the necessary components that will be used to help Malta to position itself better in the context of big data.

Furthermore, the eCommerce Malta National Strategy 2014 – 2020 also briefly touches upon big data and its impact on the Maltese economy.

Data localisation

In terms of Regulation 18 of the Processing of Personal Data (Electronic Communications Sector), Regulations, a service provider of publicly available electronic communications services or of a public communications network is bound to retain the data mentioned in our answer to question 12 above, to the extent that the data is generated or processed by such providers in the process of providing the communications services concerned.

Furthermore, according to Regulation 3, the Regulations shall apply to the processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks in Malta and any other country, including public communications networks supporting data collection and identification devices.

However, there are currently no generally applicable laws or regulations that require data to be stored locally. Having said this, regulated activities such as financial services or remote gaming could be subject to significantly more stringent data storage policies including specific locations for such data to be stored or replicated in order to be accessible to the relevant regulators.

Key trends and expected changes

The local communication sector is currently having to deal with unrelenting technology development and the deployment, fluctuations in market structures and the introduction of pioneering business models for the provision of communication services. Additionally, such technological advances are coupled with varying consumer and new business requirements, which in turn are driving demand for additional bandwidth on both fixed and mobile networks. At the moment, there is also an evolution as regards cloud-based services, and consumers are using numerous connected devices concurrently for services, including bandwidth-intensive services, which include but are not limited to video streaming. The need for data is expected to continue growing, accentuating the necessity of resilient, consistent and high-quality networks for all types of consumers. It is also pertinent to note that over-the-top-based services are continuously gaining ground and hence, consumers are presented with better choices, yet greater choices lead to more complexity.

Tendencies such as migration towards unified (fixed and mobile) IP-based communications and cloud-based services result in snowballing demands on the quality and resilience of essential network connectivity. Moreover, local undertakings operating within the sector have been working on projects and tapping into new investment opportunities to upgrade their networks to be able to offer ultra-fast broadband services. Undertakings are also looking into the idea of implementing 5G networks that could provide far greater speeds than those currently being offered on the market.

On the other hand, the MCA is also gearing itself towards responding to the above-mentioned demands and advancements in new technology and it also plans to focus on the following matters (among  others):

• maintaining conditions for a multi-player scenario in the Next Generation Access environment;
• facilitating the deployment of Next-Generation-Access Networks;
• development of the Radio Spectrum Potential (development of a national radio frequency spectrum management strategy and review of the National Frequency Plan);
• the introduction of a national roadmap for spectrum in the 700MHz band in order to initiate the process of providing the necessary spectrum for 5G by 2021;
• ensure that net neutrality principles are adhered to in line with the EU Telecoms Single Market Regulation;
• monitor mobile operators to ensure that they are observing the obligations set out in the roaming Regulations;
• keep an eye on the development of the Internet of Things (IoT) with the aim of facilitating innovation and investment;
• monitor the provisions of the newly implemented national legislation that was required to ensure legal consistency with eIDAS Regulation;
• update and published a revised National Broadband Strategy which will reflect the European Commission’s communication “Towards a European Gigabit Society” and the 5G action plan; and
• development of satellite and space communications services in line with the Malta National Space Policy.

Market reviews are also on the table. In fact, the MCA will continue to observe the implementation of current ex-ante remedies ensuing from the analysis that it had conducted in the past with respect to the pertinent markets. Moreover, the MCA will continue to assess and observe the relevant electronic communications markets to ensure that markets review decisions remain applicable and that remedies are congruous to any changes in the markets since the previous review. The MCA has declared that it will strive throughout 2018 to review the following wholesale electronic communications markets:

• wholesale local access provided at a fixed location market (Market 3a); and
• wholesale central access provided at a fixed location for mass-market products market (Market 3b).

On a separate note, the MCA intends to revise its Amateur Radio Licensing framework. Currently, the MCA issues licenses to individuals holding a valid radio qualification.  Since the general principles regarding the current amateur radio licensing framework were drawn up a long time ago, the MCA deems that it is necessary to review and update this framework to regulate this service in an effective manner and to apply the ‘best practice’ licensing principles. Interested stakeholders were invited to submit their opinion by the 2^nd of February of 2018. The stakeholder’s feedback will enable the MCA to finalise its proposals to Government with respect to the amateur radio service.

Media

Regulatory and institutional structure

The key laws in Malta’s regulatory framework for the media sector focus around the Broadcasting Act (Cap 350, Laws of Malta), the Electronic Communications (Regulation) Act and the most recent addition, the Media and Defamation Bill, formally known as the Press Act. These key pieces of legislation are enforced through the Broadcasting Authority (BA).

Ownership restrictions

According to article 10(5) of the Broadcasting Act, a licence for any broadcasting service may only be awarded to a company regularly incorporated in Malta in accordance with the Companies Act. With regards to cross-ownership of media, there are currently no rules in place to the extent that ‘it is possible for one company to own broadcasting stations to the amount and type allowed by law together with any amount of press media, of whatever type or nature, varying from newspapers, magazines, pamphlets, posters, billboards, not to mention telephony companies as well’ (credit: Professor Kevin Aquilina in his contribution to the Kluwer International Encyclopaedia for Media). Nevertheless, the Broadcasting Act imposes some restrictions on the private industry with regards to media concentrations. Indeed, Professor Aquilina, formerly the chief executive of the BA, states that ‘Media concentration rules exist, nevertheless, only for radio and television services and not for other media such as the press and the new media.’

It is pertinent to note that both the largest cable TV providers in Malta are owned and controlled by foreign interests.

Licensing requirements

The BA is in charge of regulating all broadcasting content on radio and TV that originates from the Maltese islands and it has also been designated as the authority in charge of broadcasting licensing in accordance with article 3 of the Broadcasting Act. Furthermore, the same Act provides that a broadcasting licence may be granted to an applicant under such terms, conditions and limitations as the Authority may deem fit. Indeed, every licence granted by the BA shall include all such provisions that the Authority may deem necessary or expedient. In light of this, the First Schedule to the Broadcasting Act shall apply to such licences.

Currently, the BA is authorised to issue the following types of licences:

A licence for nationwide radio and TV broadcasting services

With respect to this type of licence it is necessary to note that all frequencies have been assigned. Nevertheless, Television channels on the Cable Network and on the Digital Aerial Network are still available. Therefore, a prospective broadcasting station, must first reach out to two service providers, namely, Melita and GO plc. After the latter service providers assign a new channel in their line-up, the applicant may submit an application with the BA. It should be noted that applications for a nationwide sound broadcasting licence must be accompanied by a non-refundable application fee of €5,823. Moreover, the annual licence fee payable to the Authority for a nationwide sound broadcasting licence will be €11,646.

A licence for digital radio broadcasting service

It is necessary to note that currently the licensed digital radio broadcasting service provider is Digi B Network Limited. After the BA issued a public call for applications and auction, Digi B Network acquired the right of use of DAB spectrum for use throughout the Maltese islands. Therefore, a prospective applicant, must first be assigned a new channel by the aforementioned service provider, and then he may apply for a broadcasting licence from the BA. It should also be noted that simultaneously with the submission of the application, the applicant should also pay a fee of €1,160. An annual licence fee is also applicable. Lastly, unless a licence is lawfully terminated or abridged, the validity period of such a licence shall be up to a maximum of four years and additionally, it is renewable every four years. To this end, a fee of €3,000 is due upon each renewal of an application, based on the current fee tariff.

A licence for community radio stations

This particular licence caters or the needs of a particular community or locality, and has a limited range of reception. Before submitting an application for a broadcasting licence with the Broadcasting authority, the prospective licence must first reach out to the Malta Communications Authority to obtain frequency allocation. It should be noted that applications for a community sound broadcasting licence (including for one-off events) must be accompanied by a non-refundable application fee of €116. Moreover, the annual fee payable to the Authority for a community sound broadcasting licence is €349 and for licences payable to the Authority for community sound broadcasting services for one-off events it is €116 per event.

A licence for nationwide television teleshopping broadcasting service

Before a prospective applicant submits his or her application with the BA, he or she must first approach both Melita and GO, the two incumbent cable TV distribution networks on the island, in order to obtain the necessary arrangements for the provision of a new teleshopping channel.

A licence for a satellite television broadcasting service

To obtain approval for this kind of broadcasting service, a prospective applicant must first submit an application for a Satellite Earth Station Licence with the Malta Communications Authority (MCA) since it is charged with the authority to license satellite uplink services. The applicable licence fees are as follows:

• for each station, for the transmission of communications, depending on the radio frequency bandwidth:
• stations using up to 10MHz radio frequency bandwidth, per 1MHz radio frequency bandwidth, per annum fee is €650.
• stations using more than 10MHz radio frequency bandwidth, per annum fee is 6,500; and
• each station, for the transmission of communications, used for any event:
• of 30 days or part thereof, per 1MHz radio frequency bandwidth, the fee is €110; and
• exceeding 30 days or part thereof, monthly fee, per 1MHz radio frequency bandwidth, the fee is €110.

As soon as the uplink services are duly approved by the MCA, the prospective applicant may then submit to obtain a licence for a satellite television broadcasting service.

Foreign programmes and local content requirements

With respect to the broadcasting of foreign-produced programmes, it is pertinent to note that there are no specific regulations in place and there are no rules relating to the minimum amount of local content. Nevertheless, in terms of article 23(1) of the Broadcasting Act, in relation to both television and sound broadcasts other than advertisements, the BA has the power to scrutinise the programme schedules.

Furthermore, article 23(4) of the same Act provides that the Authority may give instructions:

• as to the exclusion of any from a programme schedule;
• as to the inclusion in, or in a particular part of, a programme schedule of item/s, of a particular category; or
• as to the inclusion in a particular part of a programme schedule of a particular item.

The Authority is only bound to approve a programme schedule once it is satisfied that it conforms to its own instructions. Therefore, in light of the above, it is necessary to note that the Authority holds the ultimate control in relation to both local and foreign produced programmes.

Advertising

The Broadcasting Act regulates media advertising together with the relevant subsidiary legislation. Article 16K of the aforementioned Act provides the rules applicable to audiovisual commercial communications. The Broadcasting Act requires that all such communication is readily identifiable. Audiovisual commercial communication is also deemed illegal when it:

• causes prejudice to the right for respect for human dignity;
• includes subliminal techniques and when it spreads misleading information;
• includes or promotes any form of discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
• encourages behaviour detrimental to the health or safety of the individual;
• encourages behaviour grossly harmful to the protection of the environment;
• promotes tobacco products and cigarettes;
• promotes alcoholic beverages in such a way as to target minors or to stimulate immoderate consumption of such beverages by adults;
• serves as an advertisement of medicinal products and medical treatment available only on prescription in the member state within whose jurisdiction the media service provider falls;
• causes physical or moral detriment to minors;
• directly encourages minors to buy or hire a product or service by abusing of their inexperience or innocence;
• strongly urges minors to persuade their parents or others to purchase the advertised goods or services; and
• exploits the special trust minors place in parents, teachers or other persons, or when it unreasonably includes the presence of minors in dangerous situations.

With regard to online advertising online, Maltese law does not directly regulate advertising which occurs over the internet in general or through social media. Nevertheless, a number of laws apply in more general terms. For instance, advertising of good and service must be consistent with the relevant European Directives regarding consumer protection and which consequently have been transposed into Maltese law, specifically under the Consumer Affairs Act. Furthermore, reference should also be made to the local provisions on misleading and comparative advertising. Essentially, the legislation that implemented the Directive regarding misleading and comparative advertising was the Consumer Affairs Act where Act XXVI of 2000 entitled the ‘Consumer Affairs (Amendment) Act’, saw the introduction of article 48 dealing with misleading advertisements, article 49 dealing with comparative advertising and article 50 dealing with allowable comparative advertising.

Must-carry obligations

Must-carry obligations are regulated by Regulation 49 of the ECNR which provides that the MCA may impose ‘must carry’ obligations for the transmission of specified radio and television broadcast channels and complementary services, principally accessibility services to enable suitable access for disabled end users, on undertakings providing electronic communications networks used for the distribution of radio or television broadcasts channels to the public where a significant number of end users of such networks use them as the principal means to receive radio and television broadcasts. However, such obligations shall only be compulsory where they are required to meet clearly expressed general interest objectives and shall be proportionate and transparent.

With regards to financing, the same regulation goes on to state that the MCA may determine, in a proportionate and transparent manner, the appropriate remuneration, if any, in respect of measures taken in accordance with the above-mentioned provision.

Furthermore, in 2011, the MCA published its Guidelines on ‘Must-Carry Obligations’, which provide the framework for determining how must-carry obligations should be imposed on a pay TV operator. Specifically, Guideline 4 addresses remuneration matters.

Regulation of new media content

New media content is notably one of the most under-regulated subject matters within the sphere of Maltese media law.

Digital switchover

Digital switchover was completed on 31 October 2011 with the switching off of the analogue broadcasts. Consequently, the switchover freed up space for more radio frequencies that could then be utilised for LTE networks in competition with the current LTE network.

After the switchover the Malta Communication Authority’s main goal was to coordinate spectrum to simplify the effective provision of mobile services in the 790–862MHz frequency band, which is often referred to as the 800MHz band, with the ultimate aim of making the most of the digital dividend for Malta.

It is interesting to note that on the 21 November 2016, the MCA published a ‘Call for Applications leading to the grant of the rights of use of radio frequencies in the 800MHz band in Malta’; however, this application process came to a halt this year (2017) when the MCA announced that all the submissions to the 800MHz call for applications have been concurrently withdrawn by the respective applicants. The applications were withdrawn as a result of the developments in the local mobile market arising from an anticipated merger between two of the local telecom players. Consequently, participants withdrew their interest from the 800 MHz band assignment process.  However, the assignment process kickstarted again in August 2017 due to a request by one of the local telecom service providers and as a result a call for applications was published. The MCA received three applications from the parties who had earlier conveyed their interest in obtaining spectrum in the 800 MHz band, 1800 MHz band and the 2.5 GHz bands. It is pertinent to note that the MCA forecast that the evaluation process should be finalised by June 2018.

Digital formats

No, we are currently not aware of such restrictions.

Media plurality

With respect to media plurality, article 11 of the Broadcasting Act provides that when issuing broadcasting licences, the BA shall be guided by the principles of freedom of expression and pluralism shall be the basic principles that regulate the provision of broadcasting services in Malta. Therefore, the BA does not have a particular process to assess media plurality but it simply conforms to its own principles of pluralism.

Nevertheless, after a thorough analysis of article 15 of the same Act, one may deduce that the Act empowers the BA to give any person providing, or responsible for the provision of, any sound or television broadcasting service in Malta, such directions as the Authority may deem necessary or expedient. Therefore, although the law only briefly considers the principle of media plurality, the Broadcasting Act is still given leeway to give directions on this principle as it deems fit.

It is noteworthy that in 2016 according to the Media Pluralism Monitor, which is a research tool that was developed to pinpoint possible risks to media pluralism in the European Union’s member states, Malta’s risk of media pluralism is to be categorised as ‘medium risk’. The report specifically points to various risk-increasing causes that mostly relate to lack of data on the media market, direct political ownership of media outlets lack of protection and self-regulation of journalists, among other various causes. The report suggests that an overhaul should take place with regard to the legislation of public service media regulation.

Key trends and expected changes

The most recent, yet vital, game-changer in Maltese legislation, is the 2017 Media and Defamation Act, which will replace the existing Press Act, and is intended to regulate and provide for the updating of the regulation of media and defamation matters and for matters consequential or ancillary thereto. The major changes include mediation before court, the possibility of apologies being given and accepted before proceedings and higher moral damages awards.

Regulatory agencies and competition law

Regulatory agencies

The BA is in charge of all broadcasting stations and ensures their compliance with legal and licence obligations, including matters which relate to public or political controversy (ie, the media sector). The communications sector is ruled by the MCA, which is responsible for the regulation of communication services in Malta.

Yes, the communications regulator (ie, the MCA) is a separate and distinct body from both the BA and the Malta Competition and Consumer Affairs Authority (MCCAA), the latter being the one responsible for antitrust regulations and of ensuring ‘the consistent application of competition and sectoral regulation’.

Appeal procedure

With regards to the MCA, an aggrieved individual or undertaking may file an application with the Administrative Review Tribunal (which replaced the former Communications Appeals Board). This tribunal is competent to review administrative acts of the public administration on points of law and points of fact. Moreover, unless any provision of the law does not provide for any time limit for the filing of an action for review by the tribunal, an action to review administrative acts is to be filed within a period of six months from the date when the interested person becomes aware or could have become aware of such an administrative act, whichever is the earlier.

On the other hand, if a broadcasting licence is refused or suspended by the BA, an appeal may be filed before the Court of Appeal within 15 days from the date of service upon him of the decision of the BA.

With respect to the competition and consumer affairs, appeals from decision of the Director General (Competition) and Director General (Consumer Affairs) may be heard before the Competition and Consumer Appeals Tribunal.

Competition law developments

With respect to competition law developments within the communications and media sectors, it is interesting to note that on 24 May 2017, Apax Partners Midmarket SAS, Fortino Capital and Vodafone Group Plc announced an agreement to merge Melita Ltd and Vodafone Malta Ltd. Essentially, the aim was to merge the island’s leading mobile operator (Vodafone Malta) with Malta’s principal cable, broadband and tv provider (Melita Limited). However, in December 2017 it was announced by the parties to the proposed transaction that they were not able to entertain the MCCAA’s requirements and therefore a decision was reached to terminate the transaction and consequently withdraw the notification.

For further information about how GVZH Advocates can help you with your technology, media or telecommunications legal requirements, kindly contact us on tmt@gvzh.mt.