Media merger rules are no substitute for media policy

New regulations now make it easier to restrain and monitor the merger of newspaper, broadcasting and internet organisations. But no competition law alone ensures the public hears all of the stories good journalists might tell.

An act of will is at the heart of media policy. Governments must decide what media system works best in the public interest and then strive to enable it.

This means adequately resourcing the publicly owned broadcaster, freeing it from grosser commercial pressures and ensuring that a broad range of other perspectives can survive in the market.

Critics doubt this Government’s resolve. Fine Gael in the past received donations from Denis O’Brien, now the biggest single investor in Irish commercial media. The party did not pursue certain findings of the Moriarty tribunal that O’Brien contests, and it was slow to support new merger rules recommended seven years ago by the Media Mergers Advisory Group.

This has heightened concerns about one individual’s growing role in the Irish media. The challenge of deciding how dominant he is depends partly on whether or not one factors in media consumed in the Republic but owned outside it.

The new legislation is not retrospective, and so cannot be used to oblige O’Brien to divest himself of some of his existing interests in radio stations and Independent News and Media newspapers. A retrospective law on mergers might incur substantial liabilities for the State by way of compensation to investors who acted in good faith within previous rules.

Legal shortfall

And what if a big company simply uses its power now to launch a new title aimed at a smaller domestic competitor, a concern expressed by

The Irish Times

in its submission on those rules? We cannot depend on the mergers law alone to ensure the best media environment.

Fears about wealthy people such as Denis O’Brien or Rupert Murdoch, who also has big media interests in Ireland, or about multinational investment funds are understandable. Measuring their power requires a sophisticated methodology.

Any Minister assessing a merger must ensure that his advisers are genuinely independent and media-savvy.

Even if the new law were retrospective, it might not prevent O’Brien from holding the same stake in Irish media that he does now.

Companies can legitimately game the mergers system, within stock exchange rules. Regulators have to make complex choices between various factors. Does one add up the number of media companies owned, or the number of readers/listeners? And separate online news and current affairs services must be factored in, but without diluting the power to intervene in a takeover of traditional media.

The new rules, recommended broadly by the Media Mergers Advisory Group on which I sat seven years ago, include a range of useful qualitative indicators of diversity and plurality.

Degree of commitment

But how determined are the government and Broadcasting Authority to give the rules teeth, to look closely at (for example) editorial positions in merging media – at “Previous political endorsements, positions on issues of debate or controversy, [and at] evidence of diversity of opinions in matters of public debate” as the new media mergers notification form requires?

If media companies, from RTÉ through INM to Sky, are left broadly to their own devices to provide journalism in the public interest, while at the same time not being staffed by adequately experienced and critical personnel free from untoward editorial or commercial pressures, then the public is less likely than otherwise to be told the full truth. On the other hand, it is very hard to insist on certain standards from Irish companies that place them at a disadvantage in respect to British and other overseas competitors.

In media, as in other areas of global capitalism, international governance is needed if regulation is to be effective. Such governance requires co-ordinated acts of will by single states. Ireland could at least set an example and try to lead the way.

It can do so by purging RTÉ of its grosser commercial inclinations, by insisting that the BAI puts meat on the bones of contracts it has issued to broadcasters that seem to permit loose interpretation of terms that promised a range of content, and by removing any suspicion that the State fails to act appropriately in respect to powerful media owners.

Ireland can lead the way by clearly articulating abroad what kind of media environment the public needs in healthy democracies, and by co-ordinating a more effective response not only at EU level but globally.

Dr Colum Kenny is professor of communications at Dublin City University