Action on media mergers legislation required now


OPINION:DENIS O’BRIEN, the Irish billionaire stalking Independent News Media (INM), “plans to buy the company”. So Britain’s Observer newspaper reported four years ago, in March 2008. And reports like this prompted the Irish government to act on Ireland’s outdated media mergers law.

 A small group chaired by Paul Sreenan SC was asked to report within three months on what should be done. The Advisory Group on Media Mergers, of which I was a member, completed its work in June 2008. But our report was not published until 2009, and then only electronically. We still await action based on its recommendations.

The report spelt out clearly what is needed to safeguard Irish society against undue concentration of media ownership. The blueprint is there.

Last week Taoiseach Enda Kenny said of developments at INM: “Clearly this is a matter that obviously has been brewing for some time. I don’t know all of the details yet, but government in its own way will have to reflect on this in terms of cross-ownership of media.”

“Obviously” is right. But the time for reflection is past. Delays due to ideological or departmental differences between Fine Gael and Labour concerning how media ought to be regulated, or due to deference on the part of some ministers to any particular media owner, are not in the public interest.

The advisory group pointed out as a priority that media mergers raise strong public-interest concerns relating to plurality (both of ownership and content). We recommended the important role of the media in a democracy should be recognised by statute. The group identified difficulties with the current system, including concerns about the role of the Competition Authority, lack of clarity in the relevant criteria for media mergers as currently defined and the absence of clear statutory mechanisms to protect the public interest in media plurality.

We suggested a reduced role for the Competition Authority in the assessment of plurality aspects of media mergers, redefined the relevant criteria to be taken into account and suggested a statutory test to guide the relevant minister in making decisions.

Media mergers have such a broad impact that they cannot be assessed solely in market terms, like the takeover of a soap manufacturing business, for example. The group identified concrete indicators of diversity that could be adopted.

For the group, I attended a meeting of European experts in this field in Exeter. We drew on knowledge of what works best when ensuring actual diversity of both content and ownership – and not simply window-dressing.

Concrete indicators of “diversity of content” include independent and objective data on the audience/readership for particular media businesses, not only as an indicator of numbers but also of the specific types of taste and content to which individual media cater.

Indicators may include records of breaches of codes of good practice (such as those of the Press Council or the NUJ), transparency in respect to conflicts of interest, and adequate levels and conditions of employment.

Media require a guarantee of continuing and sufficient resources to ensure the breadth and depth of coverage appropriate to a diverse, multicultural society.

During the boom years, on both sides of the Atlantic, big business investors stripped resources from their media holdings for profit or for reinvestment in other activities. They left leading newspapers crippled. Future success will not come from further cuts in spending at the expense of in-depth journalism but from capturing market share through imaginative initiatives.

The advisory group, which included Google’s John Herlihy, recommended that the present definition of “media business” for the purpose of calculating how much media a company owns be amended to include publication of newspapers and periodicals on the internet and broadcasts of certain audiovisual material on the internet.

The group commissioned a research paper to provide a comparative analysis of the legal framework for media mergers in a number of jurisdictions. It is long past time for the group’s recommendations to be enacted. But there are limits to what any such law can achieve. It will not stop, for example, Irish media companies being sold to big European multinationals. It can control the scale of such takeovers only in the same way that mergers by Irish nationals may be curtailed to prevent undue concentrations of ownership.

Mergers legislation may not necessarily prevent a buyer from fundamentally changing the mix of key staff in a purchased media company. Any new law could be designed to address the motivation and character of those seeking control. The president of the High Court recently said during a failed attempt by Michael Lowry TD to get a summary defamation judgment against journalist Sam Smyth that tribunals would be pointless if their findings could not be used as “a road map or trail” where appropriate.

Commentators have voiced suspicions that at least one rising shareholder at INM, Denis O’Brien, is motivated by annoyance with journalists at the group who have written about him. INM’s Sunday Independent is an influential and controversial broadsheet, read every week by about a million people across all social classes. Its readership is more than twice that of Rupert Murdoch’s Sunday Times and it has more ABC1 readers alone on Sundays than The Irish Times has on any weekday.

Denis O’Brien was described this month by the Financial Times as “Ireland’s richest man”. If he now exercises effective control of INM and appears to influence unduly the content or profile of the Sunday Independent (for which I write regularly) or any other INM title, it will be a rebuff to loyal readers and a boon for foreign competitors.

Mr O’Brien sits under a cloud of adverse tribunal findings that he claims were unfair. His future actions at INM are an opportunity for him to assuage the worst fears of his detractors and to shape positively the reputation that posterity will confer on him.

Dr Colum Kenny is professor of communications at Dublin City University and a member of the Broadcasting Authority of Ireland

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