Tánaiste publishes Report of the Advisory Group on Media Mergers

MEDIA MERGERS

Media mergers are subject to the normal clearance provisions under the Competition Act 2002 with the exception that, regardless of turnover thresholds, all media mergers, as defined for the purposes of the Act, must be notified. The Act prescribes that, where the Competition Authority decides that a merger may not be put into effect because it would have the effect of substantially lessening competition, then the Minister for Enterprise, Trade and Employment has no role. However, if the Authority determines that a merger should be put into effect with or without conditions, the Minister is mandated under the Act to consider such mergers having regard to, and only to, the “relevant criteria” (specified in Part 3 of the Act) which essentially relate to the diversity/plurality of views in the Irish public sphere, the strength and competitiveness of media businesses indigenous to the State and the dispersion of media ownership amongst individuals and other undertakings.

Following consideration of the “relevant criteria” i.e. the public interest criteria, the Minister may then decide that the merger (i) be put into effect, (ii) be put into effect subject to conditions or (iii) not be put into effect.

The Advisory Group was specifically asked to examine the provisions of the Competition Act 2002 in relation to media mergers and, in particular, the “relevant criteria” by reference to which the Minister for Enterprise, Trade and Employment currently considers media mergers. The Report of the Advisory Group contains eleven (11) principal recommendations, the implementation of which would require the introduction of primary legislation. The Group’s recommendations, in summary, are as follows:

1. There should be a statutory definition of media plurality (referring both to ownership and content);
2. The Competition Act should be amended to incorporate a statutory test to be applied by the Minister in the discharge of his or her function in relation to media mergers;
3. The current definition of the “relevant criteria” in Section 23(10) of the Competition Act should be replaced;
4. There should be an on-going collection and periodic publication of information and employment of concrete indicators in relation to media plurality in the State;
5. The Competition Authority should neither be required to form nor to furnish an opinion on the application of the “relevant criteria”;
6. There should be a separate system of notification of media mergers to the Minister for clearance;
7. There should be an obligation imposed by Statute on parties to a media merger to provide full information to the Minister on all circumstances that might impair media plurality in the State and to notify any changes in information provided to the Minister, with appropriate penalties for non-compliance;
8. The Minister should publish Guidelines to assist undertakings involved in media mergers in knowing how the Minister would in general apply the relevant criteria;
9. In the event of the Minister deciding to proceed to a detailed investigation of a proposed merger (other than a broadcaster to broadcaster merger), a three to five person Consultative Panel should be established on a statutory basis to provide advice to the Minister on the media merger;
10. The definition of “media business” should be amended to include publication of newspapers and periodicals over the Internet and broadcast of certain audiovisual material over the Internet; and
11. The important role of the media in a democracy should be recognised by Statute, ideally in the Long Title of the Act containing the relevant provisions on media mergers.

Other Relevant Information

The Advisory Group conducted a wide-ranging consultation. It published an advertisement seeking submissions in a large number of newspapers. In addition, a number of persons and bodies were invited to make submissions. The Group also held meetings with the Joint Oireachtas Committee on Enterprise, Trade and Employment, the Joint Oireachtas Committee on Communications, Energy and Natural Resources and the Competition Authority.

In formulating its recommendations, the Group has aimed to balance the needs of business for transparency, certainty and efficiency with the public interest in the protection of media plurality in the State.

ENDS