Rachael Craufurd Smith

Measuring Media Plurality in the United Kingdom: Policy Choices and Regulatory Challenges

The Centre for Media Pluralism and Media Freedom is co-financed by the European University Institute and the European Union.

Determining Regulatory Competence for Audiovisual Media Services in the European Union

This article examines how the Audiovisual Media Services Directive (AVMSD) allocates regulatory competence among the European Union Member States.1 Recital 33 to the AVMSD states that a ‘core’ objective of the Directive is to ensure that the ‘country of origin principle’ applies to audiovisual media service providers, whether providers of broadcast or on-demand audiovisual media services, or audiovisual commercial communications. The Directive thus seeks to implement, in relation to the fields that it co-ordinates, a ‘one-stop regulatory shop’. As a result, audiovisual media service providers need only comply with the rules imposed by a single State, the country of origin, and not those of all countries where their services can be received.2 The allocation of regulatory competence among the Member States is here referred to as the ‘international dimension’ to the AVMSD’s jurisdictional rules. The principle that a single State has jurisdiction over a particular media service can, however, lead to ‘regulatory disjuncture’, where the rules applicable to a specific service are established by country A but the service is targeted at, or predominantly received in, country B, where different standards apply. This creates tensions between countries and concerns that fundamental social and cultural norms are being undermined by European Union internal market rules. Sweden, for example, has objected to the transmission from the UK of television channels that do not comply with Swedish advertising restrictions designed to shield children (and their parents) from undue commercial pressures.3

Media Ownership and the Public Interest: The Case of Virgin Media, British Sky Broadcasting and its ITV Shares

In November 2006 British Sky Broadcasting Group (‘BSkyB’) acquired a 17.9 per cent stake in the terrestrial television broadcaster ITV plc (‘ITV’). This was the first UK merger to trigger an investigation under the ‘media public interest’ provisions in the Enterprise Act 2002.1 These provisions enable the impact of a merger on media pluralism to be assessed either on its own or alongside competition concerns. The case, which at the time of writing was still being pursued through the courts, is of interest because it highlights some of the vagaries and complexities of the existing media ownership regulations in the UK. The operation of the law in this area was recently reviewed by the House of Lords Select Committee in its report on The Ownership of the News.2 The Committee, which took note of the BSkyB case, called for significant modifications to both the terms and the operation of the media public interest provisions in the Enterprise Act. Though the Committee’s proposals have not, for the most part, attracted the support of the present government, they merit further consideration, particularly in the light of pressure to relax existing ownership restrictions at the local level and ongoing discussion regarding potential mergers among the main national broadcasters.3 The BSkyB case will also be of interest to regulators and legislators in countries such as the United States, which have [2009] 1 Journal of Media Law 21–36

European and international media law

their contribution to a theory of anonymous speech. The greatest merit of this book is that it offers a uniform perspective for examining the several layers of this complex topic and simplifies the many important questions that it tackles. The reader will eventually put the book down with a sense of clarity. Barendt’s work thus provides a valuable framework with which to process and understand emerging questions concerning the legitimacy of anonymous speech and will undoubtedly become an essential point of reference for any future contributions to this field.

Newsgathering: law, regulation and the public interest

dimensions) amongst them. The legal interpretation of human dignity, even if consideration is narrowed down to the analysis of issues pertaining to freedom of expression, thus has implications going far beyond the dilemmas surrounding hate speech. If Heinze’s theory is to serve as a general foundation for free expression, it also has to tackle other forms of speech in the public domain, which are different from hate speech and constitutionally limitable according to the present state of democratic legal systems. I am not sure that the arguments in favour of censuring, for example, a defamatory statement relating to a public figure (or a breach of his/her honour) are significantly more numerous than, or different from, those in favour of limiting hate speech targeted at a community, and still, there are very few who would argue in favour of the repeal of defamation law in relation to public figures altogether. If, however, human dignity is considered not as a right but rather a precondition for ‘democratic citizenship’, together with freedom of expression, then – as Heinze also recognises – we will continually need to strike a balance between these two ‘prerogatives’, exactly as is done today when legal systems recognise these two as ‘rights’. This would not in the least facilitate solving the dilemmas concerning the limits of freedom of expression and its necessary balancing with other rights, contrary to putting the theory proposed by Heinze into practice. Even if the scenario of LSPD lifting their limitations on hate speech in the near future does not seem likely, Professor Heinze’s book and his inspirational and at the same time thought-provoking ideas, razor-sharp observations and powerful arguments, contribute significantly to further enlivening the discourse on freedom of expression.

David AL Levy and Robert G Picard (eds), Is There a Better Structure for News Providers? The Potential in Charitable and Trust Ownership

The purchase by BSkyB in 2006 of a 17.9 per cent shareholding in ITV, the recent attempt by News Corporation, as it then was, to take full control of BSkyB, and the takeover of a number of radio stations owned by the Guardian Media Group by Global Radio in 2012 led to a lively and ongoing debate as to the risks posed by media ownership consolidation to the diversity and reliability of news provision. A range of public and civil society organisations have called for legal reform in this area, with the House of Lords Select Committee on Communications recently suggesting that Ofcom should take a more proactive monitoring and supervisory role, reviewing not just mergers but also ‘organic growth’ arising within media markets more generally. Limiting the share of media markets that any one individual can own may help to reduce the risk of undue political or commercial influence but is unlikely on its own to ensure the provision of high quality, independent journalism. It can only be part of the solution. This is particularly so given that for the last decade many newspapers have been grappling with the implications of dwindling revenues from hard copy sales as advertising and readers have moved online, the challenges of maintaining and monetising their own online presence, and addressing new competition from specialist blogs and user-generated content. These developments lead us to ask whether the traditional institutional news provider has a future and whether there are variants that can perform some of the valuable functions of these major institutions—trusted, reliable political oversight and continuous coverage of a wide range of often unpredictable social and political events—yet prove less susceptible to the vagaries of evolving media markets. This is the important topic raised by David Levy and Robert Picard in their book Is There a Better Structure for News Providers?, part of the excellent series of publications produced by the Reuters Institute for the Study of Journalism in Oxford. The book is divided into three parts. Part one explores the various trust and charitable structures that can be employed by the news media, particularly in the United Kingdom. Part two provides a number of case studies, drawn from around the world, where trusts or charitable organisations have been successfully employed. Part three includes a commentary on conversations among the various contributors on key issues identified in the work. The book, published in 2011, remains a particularly valuable resource for those considering the tools at our disposal for enhancing the quality of news provision in the United Kingdom (UK) and further afield. As David Levy notes in his introductory chapter on why charitable and trust ownership may be desirable, the book was designed to address the ‘lack of information [on the topic], and to equip those who are drawn to consider alternative forms of ownership and organisation with a more

Protecting the Public Interest in a Free Press: The Role of Courts and Regulators in the United Kingdom

The freedom and independence of the press in democratic societies is both a ‘constitutional principle’ and a ‘constitutional necessity’ (Lord Judge, 2011). The media relay information needed by citizens to make informed political, social and personal choices and create fora in which opinions can be tested and exchanged (Barendt, 2005: 25–27; Hitchens, 2006: 49–60). But the media are not merely passive conduits of third-party content; they also seek out, select, contextualise and analyse information and ideas (McQuail, 2010: 380–382, 512–515). In particular, citizens look to the media to investigate and reveal potential abuses of power, corruption or hypocrisy by government or other influential bodies or individuals.

Reviewing Media Ownership Rules in the UK and Europe: Competing or Complementary Investigations?

Consultations on media ownership are like buses; one can wait years for one to come along, only to have two or three arrive at the same time. Consultations, of course, can perform a number of functions, one of which is to put off having to address a controversial or difficult issue for as long as possible. Faced with a number of inquiries into the same subject matter one might conclude, therefore, that the chances of any meaningful follow-up action would be extremely slight. But multiple investigations are also indicative of competition among institutions to impose their own stamp on an issue they consider to be important. In such a context, it is much more likely that there will be concrete proposals and ultimate action. The two current inquiries into media plurality in the UK, one governmental, one parliamentary, arguably fall into the latter, rather than the former, category and thus merit careful attention. This note begins by explaining the origins and overlapping remits of the UK investigations. Section 2 then considers a number of key issues that are central to the development of the UK’s media ownership regime and how various actors and interest groups have addressed these issues in their evidence to the inquiries. Section 3 examines the European Union’s current interest in media pluralism and the relationship between EU and domestic policies in this field. In the concluding section I suggest that the House of Lords Select Committee on Communications, with its cross-party representation and broad remit, is well placed to put forward recommendations in this controversial field. As its Chairman, Lord Inglewood, stated at the start of the inquiry: ‘plurality has been rather absent from recent debates and we hope, having considered it carefully, to make recommendations which will lead to action.’

Media Policy in the United Kingdom: Trust and Distrust in a Converging Media Environment

The United Kingdom of Great Britain and Ireland (UK) is a constitutional monarchy and a unitary state consisting of four countries: England, Wales, Scotland, and Northern Ireland. The UK is governed by a parliamentary system with its seat of power in London; there are devolved administrations in Scotland, Wales, and Northern Ireland.1 All powers that have not been devolved remain with the UK parliament.2 In relation to the media, these reserved matters include broadcasting, telecommunications, data protection, film classification, UK official secrets legislation, competition policy (including newspaper mergers), and intellectual property. The UK has no formal written constitution. Many rules relating to government take the form of unwritten conventions, though certain values or principles that can be considered to have constitutional status are enshrined in legislation, such as the Human Rights Act 1998 (HRA).3 As a member of the European Union (EU), the courts in the UK have accepted the primacy of EU law.4

Karen Donders, Public Service Media and Policy in Europe

In Public Service Media and Policy in Europe Karen Donders considers the legal basis for, and practical impact of, European Union (EU) intervention in the field of public service broadcasting. Over the last 20 years there has been much hand-wringing by politicians, civil society organisations and academics regarding EU involvement in the media field in general and the public broadcasting sector in particular. Because of the very different constitutional, cultural and economic conditions in the various Member States, policy in relation to the media is widely seen as something that is more appropriately determined at state rather than EU level. Moreover, the EU has, from its origins, pinned its colours to the free market mast, raising concerns that the application of EU competition or internal market rules may be insufficiently sensitive to the principles of social cohesion and solidarity that underpin the operation of Europe’s public service broadcasters. Karen Donders’ book, the fruit of more than four years of careful research, sets out to assess whether these concerns are well founded either in theory or practice, and offers a measured and welcome reappraisal of the situation. It seeks to illuminate the tensions by providing a theoretical framework for understanding public service broadcasting; explains the legal provisions in a clear but not overly technical way; identifies the various policy actors and their competing interests; and charts the way in which EU policy has evolved over time. It also seeks to contextualise the various issues by examining the impact of EU law on three very different public service broadcasting regimes. Chapters 2 to 4 provide the main historical and theoretical background for the discussion that follows. Donders charts the move away from monopoly provision and growing competition in the broadcasting sector, the result of both technological developments and shifting political support for market ideology. Faced with a hostile ideological and political environment, many public service broadcasters sought to protect themselves by introducing new management and accountability systems designed to underline their greater efficiency and responsiveness to the audience, on whose support they largely depend for continued funding. Public service broadcasters thus acted as entrepreneurs and technological innovators, but their move to exploit new forms of delivery, particularly the internet, brought them into conflict with commercial press and broadcast interests similarly keen to colonise the online domain and diversify their services. These conflicts lie at the root of many of the state aid cases discussed in this book. Rather than use the term ‘public service broadcasting’, Donders suggests that it is now usually more appropriate to refer to ‘public service media’ to reflect the multi-platform, multi-media nature of public service provision, and this terminology is indeed now widely used in academic literature and by international organisations such as the Council of Europe. Chapter 3 identifies key perspectives on public service media. These range from the ‘market failure perspective’, which sees public provision as limited to services and content