(IBA IBA} ei casting A ii ae Independent Broadcasting Authority Ref: LT-TOP/201038 Me. Balktishna Kaunhye Managing Director TOP FM Ltd 7° Floor, The Peninsula, (03 Aprit 2020 Deer Se, Re: BREACHES IN THE NEWS BROADCAST BY TOP EMLLTD ON 06 AUGUST 2019 [SUSPENSION OF LICENCE TOP FM LTD 1. TOP FM Lid. is the holder of a PRIVATE COMMERCIAL, FREE TO AIR FIM RADIO BROADCASTING LICENCE (the “Lience’) issued by the Independent Broadcasting Authority, (the “Authorty’), pursuant to the provisions of the Independent Broadcasting Authority Act 2. The Licence was renewed by the Authonty forthe povod 13 Decenber 2018 to 12 December 2021 3, Clause 8 of ine Licence provides for suspension ofthe Licance and reacs a flows "9, SUSPENSION 9.1 Notwithstanding Clause 8 above, where the Authority Is satsfed that— 1 the Licensee has faled fo start its operation within 8 months of the issue of ths Licence or within such adeitiona period 28 may be allowed by the Authority: '. the Licensee has ceased its operation under this Licenc mn Re. the Licensee has given the Authority Information which is false ‘or misleading in a meterts! particular; 4. the Licensee has failed to comply with the Code of Conduct ‘specified in the Second Schedule tothe et (ANNEX A); €@. tis nthe pubic Interest fo do 80, Jtmay suspend the Licence." 4. TOP FM Ltd, as any other lsensee, Is also bound by the tema ofits cence ancl by ection 21(6) ofthe Independent Broadcasting Authority Act which makos it mandatory for Itt comply with the terms and conditions of ts cence. This has statutory Lunderpining 28 section 21(6) ofthe Independent Broadcasting Authoiy Act provides that: “A licensee shall comply withthe torms and conditions of aicence.” 5. Its clear thatthe Code of Conduct for Broadcasting Services (see clause 9:1 (0) of TOP FAN Lia's licence) has, a6 8 mater of aw, tobe complied win. A breath ofthe Code of Condit for Broadcasting Services, is also a treach of clause 9.1(8) of TOP FM Lid's ligence. TOP FM Lia's licence, n clause 9.1(@), leary specifies that such @ breach may Jad toa suspension of the lconce. 8. On 06 August 2018, TOP FM Li broadcast the following estract in its news bultin of 17-00 hours "Neshen Pillay: aro’ de dews nowwelles licences radio, le Board de 1'1BA dai ilgatement ‘constitu. C'est ce gui resort dela réponse donnée par Youida Sawmynaden dla Private Notice Question dt leader de opposition ce matin. Ce dernier voulait ‘savoir si le Board de UIadependent Broadcasting Authority tat composé dau ‘moins 3 membres indépendants comme Wexige la section 6 () de U'BA Act. 4 Dlusieurs reprises, lors de ses questions supplimeriaires, Xaver-Lue Dw! a révélé des éléments troublants concernant Uexercice d'etr de permis, Noren assodanand, Stacy Ilanda, me heStacy Intanda A ta premitre question supplémentaire de Naver Duval, fe minsire des TICe & ‘affirm que tous les membres de UIA sont indépendants mats te leader de Opposition nes pas d'accord Xavier-Lue Duval Madam Speaker, may ! ask the honourable minister wheter secon 6 ofthe [BA ‘et does not clearly specify that the board should have a minium of three independent members thatthe tine of eilocatng the licence avd fo date, these lhree independent members are non-eisient atthe Board and i is completely Jilled by government employes ond nominees. (nteraptions) Tem surprised itis ‘asm ministry. your ministry (interruptions) Stacy Ilan A ame autre question de Xavler-Lae Duval." 7. The Autholy, atts meeting of11 September 2018, considered the above iter and was ofthe considered view thatthe news item broadeast by TOP FM Ltd at 17h00 on 08 August 2018 was in breach of (8) paragraphs 2.1 and 2.2 of he Code of Ethics ©) paragraphs 3(1). 32, 318) and 3(4) of the Code of Conduct for Broadcasting Sorvices: and (© paragraph 25.1 ofthe Licence of TOP FM Lid 8. By way of ltr dated 18 September 2019 (Ref: LT-TOP/191072), TOP FA Lid was requested to show cause, by 28 September 2019 at noon, as to why it should not be Sanctioned for breaches of paragraghs 2.1 and 2.2 of the Code of Ebies, paragraphs 311), 82), 368) and 3(4) of the Code of Conduct for Broadcasting Services. and paragraph 25.1 ofthe licence of TOP FM Lic 9, Me Ashok B. Radhakissoon, whose services were retsined by TOP Fl Ltd, requested for an extension of ime to respond to the seid letter. That request was, in faimess 10 ‘TOP FM Lt, favourably considers by the Authoty, aged be10.By way of letter dated 08 October 2019 Me Ashok B. Radhakissoan thanked the [Athony for having acceded to his request for an extension of te. He also, inthe fame leer, requested for pariculars which of te polenta beaches eferred to Inthe leer iued by the Authonty to TOP FM Lid on 18 September 2019 (Ret LT- ToPn9072) 11.The request for parculars in relation to the allaged breaches by TOP FM Lis was debated during the Authory’s meeting of 10 Oclober 20:8. 12, By way of e-Board Resolution No 21 of 2018. circulated on 29 October 2019, the ‘Aonty approved the particulars tobe provided to TOP FM Lt 13, By way of letter dates 03 Novernber 2019 (Ret: LIT-TOPI18/08), the Authority provided ‘he parculars requested by Me Ashok B. Rachakissoon and explained in detail how, in its view, the extract set out in paragraph 6 ofthis letter consttuied the breaches which ‘are sat outin paragraph 7 ofthis leer. 14, By way of leter dated 26 November 2019, TOP FM Lid replied to the Author’ letter doled 18 September 2019 which raquestditto show cause why TOP FIM Lid should not be sanctioned for the potential breaches in ts news tem broadcast on € August 2019 st 1700, 15. The ropy of TOP FM Ltd as val as the breaches refered to in paragraph 7 above were sdobated at length during the Authority's mestigs of 15 January 2020, 27 February 2020, and 18 March 2020, 16.0n 16 March 2020, the Authority decided to consider only the breaches ofthe Code of Conduct for Broadcasting Senices refered to a paragraph 7 above. The Authorty Secided, in fairness to TOP FM Ls, that no further action be taken in relation tothe other breaches set out at paragraph 7 above. ‘7. The Authoiy’sciscussions on the breaches by TOP FM Ld. were finaly concluded by ‘e-Board Resolution No. of 2020 exculeted on 31 March 2020. 18. After having considered the exslaations of TOP FM Lid, the Authoky Is not satisied wih the explanations of TOP FM Lid and is ofthe considered opinion that TOP FM Lic be Page aot?19. has breached paragraphs 9(1), 22. 29) and 4) of the Code of Conduct for Broadcasting Services set out inthe Second Schedule to he Independent Broadcasting Authority Act ‘The Authosty highlights that a breach ofthe Code of Conduct for Broadvasting Services fe a matier which Is to be taken seriously as section 21(7) of the Independent Broadcasting Authority Act provides that leonsees “shall cary out its activities in ‘compliance with the code of conduet specified in the Second Schedule.” [undarining i ours), The Authory further ighights thet the word “shal is tobe read being imperaive (vide section 5(4)(a) of he Interpretation and General Clauses Act, a5 {ucla considered and applied inthe case of 10g v Mecieal Coun Mauritius 2019 SCJ‘ ‘The news broadcast by TOP FM Ld on 08 August 2018 at 17:00 hous is considered by the Authonty 2s breaching the Code of Conduct for Broadcasting Services a flows (2) not reporting news truhfull (eit was reported thatthe Board of the Authority ‘was legally constiutes); (paragraph S(t) of the Code of Conduct for Broadcasting Services} (b) twas misrepresented that the Board of the Authority was loyally constituted, {paragraph 22) of he Code of Conduct for Breedeasting Services), (owas misrepresented thatthe Board of the Authory was Wegaly consttuted ‘when infact, the fact thatthe Board was legally consftted was mecey the view ofthe Leader of the Oppeston, (aragraph 3(3) of the Cace of Conduct or Broadcasting Senices) (©) the ategation thatthe Board of the Authority was ilagaly corstiuted was nat veified by TOP FM Lid. before is news presenter stated thatthe Board ofthe IBA was legally constiuied. (paragraph 3(4) of the Code of Conduct for Broadcasting Series) (©) in adation, the Authorty hignighed ints eter of 3 November 2019 to TOP FM Li, that at no point dd the Honourable MEnstor Sawmynaden state tit he agreed with the Leager of the Opposton that the Board of the Authority was egaly consttuted; and (9 the Authority also pointed out in that later that the extract taken as a whole ‘reached paragraphs 3(1), 312), 3(8) and 3(4) of the Code of Conduct for Srondeasng Seren ge 0h9 Be21. The Auton isnot satised withthe explanations of TOP FM Ld and censors thatthe ‘suspension ofthe Licence of TOP FM Ld is well waranted given the breaches of the Code of Conduct or Broadcasting Service se out this letter and expla, In deta n ‘he Authontys corespondences to TOP FM Lid 22, The Authotity took note thatthe mavimum gered forthe suspension of licence is 21 days (vide section 25(2}(b) of the Independent Broadcasting Autorty Act). The ‘Authority has considered ths matter very ansusly. In deciaing the lengh of suspension to be given fo TOP FM Lt, the Aurhorty, as an independent regulator, is fly alive to the fat that the suspension of a lcence is nota matter which may be treated ighty. A suspension ofa licence prevents the broadcaster from broadcasting ard reduces the umber of voices being hears and the range of programmes avalaie to the audionca, ‘The Authory considers that the threshold to suspend a broadcaster's licence is therefor, high. 23. The Authority has considered (3) the nature ofthe breaches: () the explanations of TOP FM Lid (9) the appticabe law; anc (@ TOP FMLid’s teense, before coming to 2 conclusion on tis mater. 24, The Authority has further apolied the test of proportionality to decide on the length of suspension {o be mata out to TOP FM Lis. The Authoiy is ofthe considered view that that the breaches committed by TOP Ff Lt justly the suspension cf TOP FM Lid's licence for 2 days out of maximum number of 27 days euspension which could have been given to TOP FM Ltd by the Authorty (vide section 25(2)(0) ofthe Independent Broadcasting Authorty Ac) 25. The particulars ofthe suspension period decided bythe Authority in respect of TOP FM Ud areas flows: Date suspension starts 04M Apeit 2020 Time suspension starts 08:00am, Date suspension ends 06" April 2020 ‘Time suspension ends 06:00 am. Paget? be28. The effect of the suspension Is that during the suspension petiod TOP FM Lie should not broadcast any material 27. TOP FM Lt. is further drected by the Authorty to glve puble notice of his suspension ilo to taking eect 28, TOP FU Lid is turther reminded that paragraph 35.1 ofits lcence provides 2 flows: "95, BASHING 25.1 The Licensee shall refrain from using its ‘ir {0 erlticiso decisions or dirctions/directives Issued to It by the Authority with a view to discredit theater” SIGNED FOR AND ON BEHALF OF THE INDEPENDEN} K Ren mph ‘Acting Director Page 707