Over the holiday period, the lengthy report of the (Irish) Advisory Group on Media Mergers was finally published by the Department of Enterprise, Trade & Employment. Get the (12MB) PDF here. No there’s no HTML version. Download with caution.

Although the report is dated June 2008 (and it is clear from the text that this was the Minister’s requirement and the Group’s successful completion date, with the substance being leaked on the day after publication, July 1st), I was beginning to wonder if it would ever see the light of day – but here it is, published (press release here) on January 2nd (though annoyingly lacking in either a contents or index page).

Though disappointed at the delay, and sceptical as a result of the prospects for legislative change (releasing it on that date after a 6-month delay seems like damning with faint praise – though on the other hand this may mean that the Cabinet has agreed to it), this is a good report – and would be, if translated into legislation, a significant improvement on the status quo, and indeed would (I think) bring Ireland from having little protection of pluralism to having a powerful and effective system of controls. It’s not quite lighting up the blogosphere yet (!), but there has been some coverage in the Irish Times , Irish Independent, Irish Examiner.

The main finding of the Group is that there should be a statutory definition of media pluralism, and a revised method of scrutiny for mergers (the Competition Act procedure, where there is mandatory notification to the Minister (for a decision based on factors other than competition law) but little by way of guidance for how this would actually proceed in practice. Of course, the 2002 procedure hasn’t actually seen any cases called in by the Minister yet (which continues to puzzle me).

On the familiar debate on where responsibility should lie for this question, the Group leaves little room for doubt:

The Group is of the view that competition policy is not meant to fulfil the function of protecting the public interest in plurality and diversity. There will be cases where that public interest will need to be protected by a different mechanism.

There is even some consideration of the problem that, having accepted that it goes to Government, which Minister makes the call. The solution they come up with is keeping it was the Minister for Enterprise, Trade & Employment, but with a statutory duty to consult the Minister for Communications [Energy & Natural Resources – or in one amusing typo, p 61, ‘Natural Recourses’] on broadcasting cases.

The heart of the Group’s argument is expressed in proposed definitions (which, while not using the language of internal and external pluralism, would be recognised by aficionados of this approach) (extracted and reformatted by me below) :

Statutory Test: “Whether the result of the media merger is likely to be contrary to the public interest in protecting plurality in media business in the State.”

“Plurality of the media includes both diversity of ownership and diversity of content.”

“Diversity of ownership means the spread of ownership and control of media businesses in the State amongst individuals and other undertakings linked to the market share of those media businesses as measured by listenership, readership or other appropriate methods.”

“Diversity of content means the extent to which the broad diversity of views and cultural interests prevalent in Irish society is reflected through the activities of media businesses in the State, including their editorial ethos, content and sources. “Views” includes but is not limited to news and current affairs.”

Two research projects commissioned by the group are also included: one with a focus on data and one comparative study across various jurisdictions – and a report by colleagues (and predecessors) at the University of East Anglia for the Competition Authority [Shaun Hargreaves-Heap, Andrew Scott (now at LSE), Alexia Gaudeul and Pinar Akman] is also mentioned (and the executive summary published by the Competition Authority in its submission). Their idea of a ‘media map’, originally expressed as of assistance to the Authority, is certainly reflected in some of the Group’s recommendations.

It’s a wide-ranging report with, and I’m struggling to find a nice way to say this, a wider range of cited sources than what is typical for reports of this nature – including much of the relevant academic literature. On a tangential matter of particular interest to me – there’s a sensible discussion of how ‘media business’ should include certain types of Internet content – although I’m not sure having one operational definition of broadcasting for the purposes of merger control and another for the Broadcasting Act is entirely feasible, particularly as the Broadcasting Act itself will need further consideration in order to transpose the AVMS Directive.