8 February 2017, Dáil Éireann
Can I thank Deputy Murphy and Deputy Shorthall for this debate on Media Plurality as I believe a strong and pluralistic Media is at the heart of a free and open Democracy.
Media Merger Process:
An important tool in protecting and supporting media plurality is the current Media Merger regime established under the Competition Act 2002 (as amended). This process provides for the assessment of proposed mergers and acquisitions which qualify as a "Media Merger" under the Act.
During this process, a proposed transaction is first assessed by the Competition and Consumer Protection Commission on Competition grounds. Should the CCPC clear the transaction to proceed, it is then referred to me to conduct an initial assessment of the likely impact of the transaction on the plurality of the media in the State.
In making my initial assessment, I must have regard to the "relevant criteria" provided for in the Act, the Guidelines on Media Mergers prepared by my Department and the notification material provided by the parties, amongst other matters.
Following my assessment, I have the option to allow the transaction to proceed; to allow it to proceed with conditions; or to refer the transaction to the Broadcasting Authority of Ireland for a Phase 2 or "full" media merger examination.
In those cases that are referred for a Phase 2 examination, the Authority must make a recommendation whether the merger should be allowed to proceed, whether it should be allowed to proceed with conditions, or whether it should not be allowed to proceed. I must then make a final decision on whether the merger should be allowed to proceed, whether it should be allowed to proceed with conditions, or whether it should not be allowed to proceed.
Many of the terms used to conduct these assessments are defined in s. 28A of the Act and these definitions are of crucial importance to ensuring the effective operation of the assessment process.
The Proposed Amendments:
Second Amendment – Section 28L
I want to turn to the Bill itself. I will address the second amendment first, as it raises a number of serious concerns. The main issue here is the proposed power to retrospectively break up media businesses, but I also have serious concerns regarding the location of the proposed amendment in Section 28L, which provides for the Guidelines on Media Mergers. I'm advised that such a power would require primary legislation, and as such the location of the proposed amendment is utterly inappropriate.
On the subject of retrospective action, in the current legislation, the Oireachtas has not provided for powers to retrospectively examine, review or intervene in past media mergers from a media plurality perspective because to do so would raise significant constitutional issues.
One of the difficulties that would require to be balanced is the Right to Private Property as enumerated as a fundamental right in Article 43 of Bunreacht Na hÉireann. While provision is made for the Oireachtas to regulate private property rights, interfering with these rights on an ex-post facto basis raises a myriad of legal complexities, including the potential for compensation, none of which is addressed by this Bill.
Another difficulty is giving a Minister the power to break up an existing media business if its share of a media sector, or across media sectors, exceeded a certain threshold, which, has not been defined in the Bill.
One of the consequences of the proposed use of a definite threshold is that, as one media business fails, another media business could, by default, find itself above the thresholds set, and the Minister for Communications would have the power to break up that business.
Furthermore this proposal directly interferes with the freedom of the media; What Media Business would criticize the Government if the Minister for Communications had the power to break it up at any time?
This level of uncertainty and risk is not conducive to a healthy media sector and could lead to a situation where media businesses could close because investors are afraid to invest, which – despite the good intentions behind the Bill – would damage media plurality
First Amendment – Section 28A
Briefly, the first amendment is redundant because "reach" is already defined in this section as "the proportion of a population or audience that consumes any part of the output of a media business in a given period" and this definition encompasses any "reach" associated with a media business, whether digital or analogue. Furthermore, deleting "other appropriate measures" would actually weaken the legislation as it restricts my ability to use other metrics for measuring diversity of ownership as they become available.
In conclusion I have said this before that there is an issue in relation to how we support quality journalism. I think we need to look at a broad debate in relation to journalism and content, because it is important that we have content that people can rely on. So called 'fake news' is an issue that came up in the US during the presidential elections and I raised it myself a month before the US election and it is something that is a big challenge in this technological time but there is no viable way of legislating to prevent it.
Investment in quality journalism is the only way.
It may be through supporting journalists individually with bursaries, it may be that you would support some kind of public service remit across journalism, whether it was print or broadcast. I have no fixed view on it but as you know I have asked the members of the Oireachtas Communications Committee to look at all the complexities around the funding of quality journalism and come forward with their suggestions. I look forward to hearing their proposals in this regard.
The public have respected institutions like our national newspapers, like our national broadcasters. I think it is important that trust remains there, and I think it does need to be supported and that broader debate is taking place at my instigation.
Finally I believe the current regime to assess Media Mergers is working well. The matters and criteria which I must take into account when conducting an initial assessment, and which the BAI must take into account when conducting their full assessment ensure that I, as Minister, can make a decision which protects media plurality in the State.
I do not intend to make any amendments to the current system, especially amendments which I'm advised are legally unsound despite the Deputies' best intentions.
For these very important reasons I am opposing the Media Ownership Bill 2017.
I therefore recommend that this Bill be opposed.