The object of the Broadcasting Act 2001 is to build an Irish digital television transmission network. Its success may determine whether complex Irish structures, which control what Irish citizens watch on their televisions or listen to on their radios, will survive into the future.

The Act provides that a variety of companies and commissions will build, operate and regulate the Irish digital television network. The "transmission company" will take over RT╔'s transmission network, as well as building and operating a new digital television network throughout the Republic.

This new network will transmit six digital multiplexes, which will be established and operated by the "multiplex company". A multiplex is a combination of digital programming and other material. RT╔ will be assigned one of these multiplexes, with TnaG and TV3 sharing another.

The multiplex company cannot rent out the remaining four multiplexes to whomever wants them. It may have to make them available to Northern Irish operators such as UTV.

Furthermore, the actual programmes broadcast on Irish digital television will be regulated by another agency, the IRTC, renamed the Broadcasting Commission of Ireland. Regulation will occur in different ways:

Programmes cannot be supplied for broadcast unless a digital content contract has been entered into with the commission. Breach of this provision is a crime punishable by a fine of up to £15,000 (€19,500) and two years in jail;

The commission will create codes in relation to the taste and decency of programmes, the content of the advertisements in general and those likely to be of interest to children in particular;

The commission will also control the maximum time that may be devoted to advertisements in any one broadcasting day or hour.

The Minister for Arts, Heritage, the Gaeltacht and the Islands will also retain considerable control over broadcasting, particularly the activities of RT╔, which she may order to carry specified categories of programmes and on which she may limit the amount of advertising broadcast each day.

If the digital television network is actually built, the Republic could retain much of its existing control over digital TV. But Sky is already broadcasting digital television to Ireland via satellite and it claims considerable success.

Satellite broadcasters such as Sky are not bound by the provisions of the Broadcasting Act 2001, as under Europe's Television Without Frontiers Directive, a broadcaster is subject to the regulations of the State from which it broadcasts. So a satellite broadcaster such as Sky, which uses the Astra satellite system based in Luxembourg, may be required to abide by the laws of Luxembourg and nowhere else.

Regardless of what happens to the Irish system, Irish programme makers may not be free to make programmes for satellite broadcasters such as Sky. It will be an offence for them to do so without first entering into a satellite content contract with the Broadcasting Commission.

Such controls may do little to boost the competitiveness and confidence of Irish programme makers, while the requirement that they pay fees to the Broadcasting Commission even where their programmes will never be broadcast to Ireland may seem similar to an export tax.

Ironically, a successful digital television network may not guarantee that the State will still be able to control what Irish people watch, as digital television may challenge the constitutional basis upon which the controls are imposed.

The Irish Constitution contains strong protections for free speech, with Article 40.6.1.I guaranteeing that citizens are able to express freely their convictions and opinions but, given the importance of educating public opinion, this freedom cannot be used to "... undermine public order or morality or the authority of the State".

Although optimism about the Peace Process is perpetually premature, with a falling crime rate and peace in the North, the threat to public order has hopefully diminished and this is reflected in the fact that no organisation is currently proscribed under the 1976 Act.

It may be argued that the Irish Constitution now only explicitly permits controls to be placed on the broadcasting of programming which is largely irrelevant to the mass of the Irish public anyway, such as hard-core pornography. Constitutional permission may be implied by the courts on other grounds, principally the need to manage the broadcasting spectrum in an orderly manner as endorsed by Mr Justice Keane, now the Chief Justice, in Carrigaline v Minister for Transport. Digital television weakens this argument; if numerous channels can be broadcast on digital television, then it can be argued that the viewing public should manage their choice via their remote controls, not have the State limit that choice for them.

Another difficulty with this argument is that the job of managing the broadcasting spectrum is carried out by the Office of the Director of Telecommunications Regulations (ODTR), not the Broadcasting Commission.

The internet remains the ultimate threat to Irish broadcasting regulations. Theoretically, internet broadcasting should enable Irish people to download digital content from all over the globe free from local constraints.

In practice, internet broadcasting has proven very difficult to implement and few Irish homes are connected to the broadband telecommunications services necessary to deliver it.

The provision of internet access to Irish homes is supposed to be one of the objectives of the multiplex company under the 2001 Act.

In the event that internet broadcasting became feasible, it might give rise to interesting regulatory anomalies. Content that did not comply with the criteria of the Broadcasting Commission might be downloaded over the same transmission networks simply by using internet protocols.

Denis Kelleher is a practising barrister and co-author of Information Technology Law in Ireland (Butterworths: Dublin, www.ictlaw.com)