No neat numbers or answers in media mergers Bill

How much media is too much media for one person to own or control? Part four of the Competition and Consumer Protection Bill 2014, the section that updates Ireland’s media mergers legislation, doesn’t even begin to answer that question.

"There isn't a fixed number," Minister for Jobs, Enterprise and Innovation Richard Bruton said yesterday. You can't just "do your slide rule and there's your answer".

So “what about Denis O’Brien and all the media he owns?” he was effectively asked. “I can’t comment on any individual case,” was his reply.

He no longer has any need to comment on individual cases. It is now officially the responsibility of the Minister for Communications to take what Bruton called “the ultimate decision” on whether a media merger is in the public interest.

There is, everyone agrees, a public interest in ensuring Ireland has some semblance of media plurality. Plurality is defined as including “both diversity of ownership” – defined as “the spread of ownership and control of media businesses in the State” – “and diversity of content”. This is linked to market share.

The application of that word “control” by the authorities and “evidence-collectors” involved in this modernised media mergers process will certainly be interesting.

In July 2012 the Broadcasting Authority of Ireland (BAI) said Communicorp-owner O’Brien, holder of a 29.9 per cent stake in Independent News & Media, and its single largest shareholder, did not control the group, holding only a “substantial interest” in it.

Bizarrely, the definition of “media business” is only now being widened to include the internet. This actually strengthens the argument of anyone regularly charged with owning or controlling “too much” media, as they can point to the long tail of online media and its share of the audience.

Notwithstanding Bruton's assertion about neat numbers, someone at the BAI will have to have some kind of numerical formula that helps it justify its recommendations. After all, these justifications may end up taking place in the High Court.

Bruton yesterday described the “ultimate” decisions on media mergers as “judgment calls”. He forgot to add that they will be political ones too.