There are two ways of looking at the House of Lords select committee’s report on Media Plurality, published today. The less charitable view is that it has ducked the crucial issue of how Parliament should lay down clear, unambiguous guidelines to prevent undue concentrations of media power.
In doing so, it leaves a hole in the central plank of its proposals for reform, and breaches the very specific advice given in evidence by Chris Goodall, a former Competition Commissioner now working with Enders Analysis: “Whatever you decide to propose, I hope you leave no discretion to anybody.”
The more charitable – and probably fairer – view is that the report has provided both the philosophical and practical basis for a long overdue upheaval of Britain’s plurality framework. Since the positives outnumber the negatives, I will start with those.
From the beginning, there is a welcome and unambiguous declaration about the need for a dedicated plurality policy within a democratic society. In an important passage which sets the context for the rest of the report, there is a clear exposition of why plurality cannot simply be left to the market or to competition policy: “we believe that determining clear demarcation lines between plurality and competition policy is crucial.”
There is also common sense and restraint in dealing with the BBC, where the committee rejects any suggestion that the BBC should be subjected to plurality “control measures” from outside its own regulator. It floats the idea of a more creative role for the BBC, in which the next Charter might give it explicit responsibility “to stimulate consumption of diverse viewpoints from different external sources.” That is wholly in line with Director General Tony Hall’s recent pronouncements about the BBC’s potential contribution to fostering partnerships. Moreover, in a powerful rejection of top-slicing, the committee urges Government “to support our view that the licence fee should be for the BBC alone”.
But the meat of this report lies in its suggestions for revamping the plurality framework. In what they call “the centre-piece of our approach”, the committee recommends a statutory periodic review of plurality, to be undertaken by Ofcom every 4-5 years. This idea was first floated by Ofcom itself, and is a wholly laudable and desirable proposal measure designed to account for organic growth in a dynamic and fast-changing market. At the same time, the committee recommends keeping the “transactional” review to be triggered – as now – by specific merger or acquisition activity.
Perhaps the most intriguing set of recommendations is the proposed regime for who should make the ultimate decision, with different approaches being advocated for the two types of review. For periodic reviews, a final decision would rest with the Secretary of State. Ofcom would rate any concerns across or within media markets (including the so-called digital intermediaries such as Google) on a three point scale from moderate to high to severe. Where it finds “immediate and pressing concerns resulting from organic change”, the report even allows for Ofcom to order divestment although it warns that the bar should be high, and would be subject to offers of mitigation. Moreover, with the final recommendations resting with a cabinet minister, it could of course still be overturned.
For transactional reviews, however, the final decision would rest with Ofcom. This is the most radical part of the report, including recommendations for “a new statutory responsibility for the assessment of a transaction’s impact on plurality.” It is a role for Ofcom which stems directly from the committee’s opening argument that competition policy and plurality policy are entirely separate concepts and that “a plurality assessment must focus on the interest of the citizen.” While the competition authorities would still have a role in assessing the competition aspects of a transaction, it would ultimately be left to the Ofcom board to reach a “Public Interest Decision” to resolve any conflict. The committee have therefore taken the perfectly logical view that, since decisions on plurality are ultimately about citizenship and democracy, the final decision should rest with the body which has a statutory duty to promote the interests of citizens as well as consumers.
Why no final decision on transactional reviews for the Secretary of State? Because, says the committee – clearly influenced by the evidence of Jeremy Hunt to Leveson as well as several witnesses to their own enquiry – “it is impossible for the Secretary of State to [make that decision] without the appearance of being influenced by political motives.” There is some logic in making this distinction between periodic and transactional reviews, though the same political considerations will no doubt apply equally to any divestment recommendations stemming from organic growth.
All those elegantly argued and positive recommendations are slightly diminished by the huge amount of discretion left to Ofcom and the measurement process in carrying out either type of review. Parliament should, says the report lay down guidance for a new framework but “there should be flexibility for Ofcom to interpret statutory guidance, design the assessment framework and select appropriate metrics according to the circumstances at the time of the review”. Although the report is not specific about the guiding framework for periodic reviews, it is essentially based around ensuring a sufficient diversity of viewpoints and preventing too much editorial influence. For transactions, it follows the same guiding principles and concludes that negative decisions should be based on the likelihood of a “material and unacceptable lessening of plurality”.
While Parliament’s role in providing a clear framework is essential, the discretion left to Ofcom to interpret that guidance, design an appropriate assessment framework and select metrics leaves it wide open to accusations of selective and subjective approaches. The biggest media companies are notoriously litigious; it is difficult to see either kind of review – if it results in recommendations for divestment or prevention of a transaction – avoiding lengthy legal challenges and judicial reviews.
Perhaps that is the nature of the plurality beast, and no set of proposals was ever going to fulfil what is by definition a difficult and contested policy aim. But while I sympathise with the sentiment that “a concept as complex as plurality can [not] legitimately be reduced down to one (measure)” – and indeed that proposals around behavioural remedies raise as many questions as they answer – I worry that a 21st Century Fox bid for Sky or a Google bid for ITV or an Associated Newspapers bid for the Independent would all receive an eventual green light whatever creative combination of metrics might be cooked up by Ofcom.
One further aspect of the report is disappointing. Although it mentions in passing the importance of new initiatives and interventions to stimulate media enterprises, particularly at the local level, there is little attention paid to the different creative approaches that might be feasible or the potentially enabling role of government policy. Apart from reiterating the charitable funding idea raised in a previous report, there is a missed opportunity to call for new approaches along the lines of existing small grants to Community Radio, or allowing hyperlocal sites to share revenue from statutory notices.
These, plus other ideas for generating revenue to help boost new local media, could have been included as complementary initiatives to the reformed regime for plurality reviews. Overall, however, we should certainly welcome a report which puts the citizen and Ofcom firmly at the centre of a new plurality regime.
Steven Barnett is Professor of Communications at the University Westminster, and is currently leading an AHRC funded project into Plurality and Media Power. He acted as specialist adviser to the Lords select committee on four earlier inquiries.