207. Transfer of employees Unless the Authority , the Malawi Broadcasting Corporation, or the Malawi Posts Corporation otherwise determines, all persons who, immediately before the commencement of this Act, were employed by the Malawi Communications Regulatory Authority , the Malawi Broadcasting Corporation, or the Malawi Posts Corporation established under the repealed Act shall, on the commencement of this Act, be deemed to have been transferred to the employment of the Authority , the Malawi Broadcasting Corporation, or the Malawi Posts Corporation, respectively established under this Act, on terms and conditions of service not less favourable than the terms and conditions of service with the Malawi Communications Regulatory Authority , the Malawi Broadcasting Corporation, or the Malawi Posts Corporation, respectively established under the repealed Act, and, for the purpose of determining their rights thereunder, their services shall be regarded as being continuous from the time they were employed, respectively, by the Malawi Communications Regulatory Authority , the Malawi Broadcasting Corporation, or the Malawi Posts Corporation, established under the repealed Act. First Schedule (Section 46 (2)) Licence categories 1. The Authority shall issue the following categories of licences for purposes of Part III of the Act— (a) network services licences, to allow the holder thereof to construct their own or make available an electronic communications network; (b) facility services licences, to allow the holder thereof to construct their own or make available facilities used for the provision of communications services; (c) application services licences, to allow the holder thereof to provide one or more communications services; (d) content service licences, to allow the holder thereof to provide one or more content services; (e) frequency spectrum licences; and (f) postal services licences. 2. The duration of each licence shall be specified by the Authority in its rules or in the specific conditions of the licence. 3. An entity shall not operate, manage and provide network services or facility services in Malawi except in accordance with the terms and conditions of a network services licence issued by the Authority. 4. An entity shall not provide application services except in accordance with the terms and conditions of an application services licence issued by the Authority. 5. An entity shall not provide broadcasting services except in accordance with the terms and conditions of a content licence issued by Authority. 6. The Authority shall define each broadcasting service licence in relation to one of the following categories— (a) public broadcasting services; (b) commercial broadcasting services; (c) community broadcasting services; and (d) any other licence as may be determined by the Authority. 7. A content licensee shall enter into an agreement with the holder of a network services licence for purposes of distribution of signals. The agreement shall include a service level agreement in order to evaluate the quality of the services provided by the network services licensee. 8. An entity shall not provide postal services except in accordance with the terms and conditions of a postal licence issued by the Authority. Second Schedule (Section 107 (3)) Regulation for content services 1. The Authority shall have the power to make rules and to control the content provided through content services. 2. The main principles for content regulation shall consist of— (a) protecting the public against offensive and harmful content; (b) excluding material likely to encourage crime or other illegal acts; (c) presenting comprehensive, accurate and impartial news; (d) presenting religious material in a balanced and responsible manner; (e) protecting children and young persons; and (f) appropriate advertising and sponsorships. 3. The Authority shall issue rules specifying— (a) the percentage of local content and independent and original productions; (b) the extent to which content service licensees shall provide— (i) content produced in Malawi; (ii) content produced by independent producers; and (iii) content of an original nature; and (c) the times of the day or week when such content shall be provided. 4. The regulations and rules pertaining to local content and independent and original productions shall be designed to— (a) stimulate the production of content in Malawi; and (b) prevent the excessive provision of content that is not relevant to, or not conducive to the development of, Malawi society. 5. The Authority may, in respect of the television content licence, impose and specify in the licence, such conditions regarding local television content and independent television production that, without derogating from the generality of the foregoing, may include any conditions requiring the content licensee— (a) to annually expend a specified sum of money, subject to reasonable annual escalation or, alternatively, a specified minimum percentage of its gross revenues, on programmes that have local television content; (b) to allocate a specified minimum percentage of its local broadcasting time to television programmes that have local television content; (c) in the case where the content licensee has a regional or local licence area, to allocate a specified minimum percentage of broadcasting time to local television programmes that have been produced in the relevant region or locality; and (d) to allocate a specified minimum portion of the percentage referred to in paragraph (a), (b) or (c), whichever is applicable to a prescribed diversity of television programmes that are independent television productions. 6. The Authority may, in relation to a sound broadcasting service, prescribe conditions in terms of which the content licensee is required to broadcast a specified minimum percentage of musical works that qualify as local music. 7. The Authority shall issue rules for advertising on broadcasting services. 8. Without derogating from the powers granted to the Authority to issue rules pertaining to advertising and sponsorships, such rules may include provisions— (a) prohibiting, restricting or regulating advertisements of specified goods, products, services or activities, or prohibiting, restricting or regulating specified forms and methods of advertising or sponsorship; (b) prohibiting, restricting or otherwise regulating political advertising; and (c) restricting or otherwise regulating the extent, relative to other content, of coverage of advertising and sponsorships that a content service licensee may give in the provision of its service, including, but not limited to— (i) the maximum amount of time to be allocated to advertisements in any hour or other period; (ii) the minimum interval that shall elapse between any two periods allocated to advertising; (iii) the number of such periods to be allowed in any hour or day; (iv) the prominence that may be given to advertisements or sponsorships; and (v) the exclusion of advertisements or sponsorships from a specified part of a broadcasting services licensees. 9. The Authority shall issue rules for political advertising on broadcasting services. 10. (1) Rules issued by the Authority under paragraph 9 shall apply to political advertisement, including any advertisement that— (a) is inserted or placed by or on behalf of a body, organization or group whose objects are wholly or mainly of a political nature; and (b) is directed towards a political end. (2) Objects of a political nature and directed towards a political end shall include objects that— (a) influence the outcome of elections or referenda; (b) bring about changes of the law in all or any part of Malawi; (c) influence policies or decisions of national, regional or local governments; (d) influence public opinion on a matter; or (e) promote the interests of a political party or other organization or group, for political ends. (3) A content licensee shall not carry any political advertisement, except during a period that is designated as an election period, being a period not exceeding thirty days, immediately before an election. 11. Rules issued by the Authority under paragraph 9 and designed to regulate political advertisements— (a) shall determine the maximum coverage that a content licensee may give to political advertisements during an election period; (b) shall determine the conditions applicable to the dissemination of political advertisements by broadcasting service licensees during an election period; (c) shall give primacy to the fundamental principle that all political parties or organizations are to be treated equitably and fairly; (d) shall provide that no political advertisement may be carried by a content licensee later than forty-eight hours prior to the commencement of the relevant polling period; (e) may differentiate between different classes of content licensees and, in particular, may provide that certain specified classes of content licensees shall not have any obligation to carry political advertisements; (f) shall provide that any content licensee that carries or that elects to carry political advertisements, shall treat all political parties and organizations equitably and fairly, and shall not discriminate against any political party or organization or give preference to any political party or organization, or subject any political party or organization to any prejudice; and (g) shall give due regard to the rights and freedoms entrenched in the Constitution of Malawi. 12. The Authority shall issue rules for the provision of content of an educational nature on broadcasting services. 13. The rules may impose an obligation on content licensees, or on certain specified classes of content licensees, to ensure that a specified proportion of content provided by each of the licensees constitutes content of an educational nature. 14. The rules contemplated in paragraph 12— (a) shall include an appropriate definition of the term "content of an educational nature"; (b) shall specify— (i) the extent to which content licensees are obliged to finance the production of content of an educational nature; and (ii) the extent to which content licensees may acquire and provide content of an educational nature produced by other entities; (c) may distinguish between various categories of content of an educational nature and impose different obligations on content licensees in relation to such categories; and (d) shall include provisions designed to ensure that content of an educational nature provided by content licensees— (i) is of high quality; (ii) is suitable to meet the needs and requirements of the Malawian society; and (iii) constitutes content of an educational nature. 15. A content licensee shall broadcast a counter-version presented by any entity or body of entities affected by an assertion of fact in any programme transmitted by that licensee, if the entity or body of entities concerned claims that the assertion of fact is in fact false. 16. Notwithstanding paragraph 15, a content licensee shall not transmit a counter-version if— (a) the entity or organization concerned has no direct interest in the transmission of the counter-version; or (b) the counter-version is not of reasonable length, and in particular, if it is substantially longer than the part of the broadcast that dealt with the false assertion of fact. 17. The counter-version referred to in paragraph 15 shall— (a) be limited to a factual account; (b) not contain any material that may reasonably be anticipated to expose the content service licensee to legal action if such material were to be broadcast; (c) be made in writing; (d) specify the programme and the assertions to which the objection is raised; and (e) be signed by the entity affected or, in the case of an organization, by the chief executive officer thereof. 18. The entity or body of entities affected shall not be entitled to insist on the transmission of a counter-version if the counter-version referred to in paragraph 15 is presented to the content licensee more than thirty days after the date of broadcast of the false assertion of fact. 19. The content licensee shall— (a) at the first opportunity, but not later than ten days from receiving a counter-version referred to in paragraph 15, broadcast the counter-version within the same programme or programme section as the one in which the false assertion was made and at the same time of day or, if that is not possible, at a time equal in value to that of the programme objected to; (b) broadcast the counter-version without any omissions and interruptions; and (c) broadcast the counter-version free of charge. 20. A content service licensee shall, immediately upon receipt of the counter-version referred to in paragraph 15, inform the Authority of that fact, and shall keep and store the programme objected to and the counter-version until the content licensee receives a notice to the contrary from the Authority. 21. The freedom of all content licensees is indivisible from and subject to the same restraints as those relevant to individuals, and is founded on the individual’s right to be informed and to freely receive and disseminate opinions. 22. Content licensees shall— (a) not broadcast any material that is indecent or obscene or offensive to public morals, including abusive or insulting language, or offensive to religious beliefs of any section of the population, or likely to prejudice the safety of the Republic or public order and tranquility; (b) exercise due care and sensitivity in the presentation of material that depicts or relates to acts of brutality, violence, atrocities, drug abuse, or obscenity; and (c) exercise due care and responsibility in the presentation of programmes where a large proportion of the audience is likely to be children. 23. Content licensees shall report news truthfully, accurately and objectively. 24. News shall be presented in an appropriate context and in a balanced manner, without intentional or negligent departure from the facts. 25. Where a report is founded on opinion, supposition, rumour or allegation, it shall be presented in such a manner as to indicate clearly that that is the case. 26. Where it subsequently appears that a broadcast report was incorrect in a material respect, it shall be rectified forthwith, without reservation or delay. 27. Content licensees shall be entitled to comment on and criticize any actions or events of public importance. 28. Comment shall be presented in such manner that it appears clearly to be comment. 29. Comment shall be an honest expression of opinion. 30. In presenting a programme in which controversial issues of public importance are discussed, a content licensee shall make reasonable efforts to present differing points of view in the same programme or in a subsequent programme within a reasonable period of time and in substantially the same time slot. 31. An entity whose views, deeds or character have or has been criticized in a broadcasting programme on a controversial issue shall be given a reasonable opportunity by the content licensee to respond to such criticism, should that entity so request. 32. During any election period, all content licensees shall ensure equitable treatment of political parties, election candidates and electoral issues. 33. Where news and comment are concerned, content licensees shall exercise exceptional care and consideration in matters involving the private lives and private concerns of individuals, but may bear in mind that the right to privacy may be overridden by a legitimate public interest. 34. No payment shall be made to anyone involved in crime, or who has been engaged in crime in order to obtain information, unless compelling public interest requires otherwise. Third Schedule (Section 193 (3)) Code of Conduct for licensees providing facility services 1. A facilities service licensee may, for the purposes of the provision of communication services in accordance with its licence, enter upon any land, including any road, footpath or other land reserved for public purposes, and construct and maintain a communication facility upon, over or under any such land, and alter or remove the same, provided that— (a) lines installed over any land shall be placed at the minimum height above the surface of the ground prescribed by regulations made under this Act; and (b) lines installed under any land shall be placed at the minimum height above the surface of the ground prescribed by regulations made under this Act. 2. Subject to any written law, if a facilities service licensee finds it necessary to move any line or other facility constructed upon, over or under any land, owing to any work on the part of any person or public authority, the cost of the alteration or removal shall be borne by that person or public authority. 3. Where a facilities service licensee undertakes any work which disturbs the surface of a road or footpath, it shall— (a) restore or re-instate the surface to its original condition; or (b) compensate the relevant authority or owner of the road. 4. In taking any action under paragraph 3, due regard shall at all times be had to visual amenity and the preservation of the environment. 5. If any local authority requires that in a particular area electricity supply and communication services shall be provided by means of underground cable, each facilities service licensee shall enter into an agreement with the local authority as to the installation and use of ducts and other facilities necessary for the running of underground cables. 6. Where ducts and other facilities are provided by the local authority under paragraph 5, the costs of provision shall be payable by the facilities service licensees and other public utilities making use of the facilities in proportion to their use. 7. A facilities service licensee or his representative authorized in writing may, for the purposes of provision of communication services in accordance with his licence— (a) at all times on reasonable notice, enter upon any land and install and maintain any line upon, over or under that land; (b) cut back or prune any branch of a tree which may in any way injure, or which is likely to injure, impede, or interfere with any line; and (c) do and perform all other acts and things necessary for the purpose of establishing, constructing, repairing, improving, examining, altering, or removing any line. 8. A facilities service licensee shall not exercise the powers conferred by paragraph 7 except with the prior consent of the owner of the land upon, over or under which any line is or is to be placed. 9. A facilities service licensee shall not, by reason of the exercise of the rights conferred by paragraph 7, acquire any right other than that of user only in the land upon, over or under which any line is or is to be placed. 10. A facilities service licensee shall do as little damage as possible to land and to the environment and shall pay reasonable compensation to all interested persons for any damage or loss sustained by them by reason of the exercise of the powers under paragraph 7. 11. A facilities service licensee or his representative authorized in writing may, with the prior written consent of the occupier, enter any private premises for the purposes of— (a) the provision of public communication services in accordance with his licence; (b) the installation, maintenance or removal of any line; or (c) the inspection or testing of any terminal equipment. 12. A telecommunication operator shall not interfere with or obstruct any means of entering or leaving any private premises. 13. A facilities service licensee shall pay compensation to the owner of private premises, not being the occupier, in the event that the exercise of the right of access granted under paragraph 11 depreciates the value of the owner’s interest in the premises.
