Media ownership laws

The attempt by News Corp to purchase the remainder of BSkyB and phone hacking revelations in Britain have revived debate about media ownership. Stephen Dineen outlines the situation in Ireland.

The Government is set to review the media ownerships laws. The recommendations of a 2008 report by an advisory group on media mergers are being considered by Minister for Jobs, Enterprise and Innovation, Richard Bruton, as part of planned legislation to reform competition law.

Media plurality (the concentration of ownership and the range of opinions) in Ireland is governed by competition law and the regulation of broadcasting licences.

Under the 2002 Competition Act, media mergers, as defined by a 2007 ministerial order, must be notified to the Competition Authority (CA), and within five days of that, to the Minister for Jobs, Enterprise and Innovation.

The CA then determines if the proposed merger would lessen competition. If the CA approves the merger, the Minister, can within 10 days of its determination, order a full investigation of the proposal. If the authority approves the merger after the full investigation the Minister has 30 days in which to review the decision. The Minister can accept relevant submissions, and is mandated to consider: the strength and competitiveness of indigenous media business; the spread of ownership and control of media business (and particular types) among individuals and other undertakings; the extent to which diversity of views prevalent in society is reflected in activities of various media businesses; and the market share of one or more of the types of business activity held by any of those involved in the merger.

The legislation states that the CA shall give the Minister advice on applying these criteria during the exercise of their power. A ministerial order can be annulled by either House of the Oireachtas within 21 days of it being laid before the Oireachtas, with the consequence only of giving effect to the CA’s determination.

The Broadcasting Authority of Ireland (BAI) regulates broadcasting (radio, television and multiplex) licences. Its legislative framework is the 2009 Broadcasting Act, the 2002 Competition Act and the 2010 Audiovisual Media Services (AVMS) Directive.

Under the Broadcasting Act, the BAI must regulate the number and categories of broadcasting services bearing in mind the needs of the public (including its traditions), the democratic values enshrined in the Constitution, and the provision of open and pluralistic broadcasting services. The Act requires the authority to promote diversity in control and provide a regulatory environment that will sustain independent and impartial journalism and a broadcasting sector that is “responsive to audience needs.”

Among the criteria applied to considering applications for broadcasting contracts are: the character, expertise and experience of an applicant; adequacy of financial resources; andthe desirability of allowing a person or group of persons to an undue number of sound broadcasting services or communications media.

The authority is obliged to consider the performance of any current or previous broadcasting service held by an applicant.

Under the 2002 Competition Act, the authority can make a submission to the Minister as an interested party in ministerial determinations on mergers.

The AVMS Directive sets out certain criteria which have to be considered in determining if a media service provider can be established in a member state. The criteria include: the location of a provider’s head office; where editorial decisions are made; and where a significant proportion of the work of the work is located.

As part of a revision of its Broadcasting Services Strategy the Authority will be seeking public submissions from the end of August. It hopes to publish a revised Ownership and Policy by the end of the year.

The 2008 report by an advisory group on media mergers contained 11 recommendations, including a statutory definition of media plurality (referring to ownership and content), a change in the role of the CA in the process, and a re- definition of media business to include certain material on the internet.

In a written answer to a parliamentary question in June, Richard Bruton said he will be seeking Government approval shortly for legislation arising from the advisory group’s report. Communications Minister Pat Rabbitte told the Dáil in June: “It is likely to repose responsibility in one or other Department.”

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