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Update for Media Businesses: Revised Media Plurality and Ownership and Control Policies Published

AUTHOR(S): Kate McKenna, Helen Kelly
PRACTICE AREA GROUP: EU, Competition and Regulatory
DATE: 11.07.2019

The Broadcasting Authority of Ireland (“BAI”) has recently published: (i) a new policy on Media Plurality and (ii) a revised Ownership and Control policy following a public consultation process.  Matheson, with a key focus on the media and broadcasting sectors, was the only law firm to contribute submissions during the consultation process on how the BAI should implement and amend such policies   – a copy of Matheson’s submission can be found here.

These policies will have implications for traditional media businesses operating in Ireland (e.g. print, radio and television) and their ability to consolidate which is becoming increasingly necessary to operate in a difficult industry environment.  These policies do not apply to online or social media platforms and a number of submissions were made by media businesses during the consultation criticising the lack of regulation of online and social media platforms which absorb much of the digital advertising spend in Ireland but which currently remain unregulated by the BAI.

Media Plurality Policy

The Media Plurality Policy provides some further detail on the BAI’s role in supporting and promoting media plurality in Ireland and in particular provides its interpretation and definition of the media plurality (based on the definition outlined in the Competition and Consumer Protection Act 2014 and applied in the media merger regime).

Ownership and Control Policy

The revised Ownership and Control Policy provides clarity on the BAI’s approach to applications for a BAI contract / license and applications to vary BAI contracts / licenses. These applications contain an ‘ownership and control’ element (in relation to shareholders and directors) to enable the BAI to assess (i) if any person is gaining control or substantial interests in, an undue number of media services in Ireland and (ii) the “character, experience and expertise” of applicants.

Despite submissions from industry and in light of industry decline, the BAI determined it would maintain the its approach to ‘control of an undue number of sound broadcasting services’ (i.e. a cap on radio ownership) and there remains that is a bar on a person or group owning more than 25% of the country's commercial radio services.

Comment

These BAI policies are helpful in better understanding its approach to media plurality and its license assessments, however, the traditional media industry will likely feel that they do not go far enough to facilitate necessary consolidation (while protecting media plurality) or allow for greater regulation of the online and social media platforms.

As outlined in our previous article, there is an ongoing consultation issued by the Minister for Communications, Climate Action & Environment in relation to the enhanced regulation of online and social media platforms and it remains to be seen if such regulation will alleviate the concerns of the traditional media industry.

This article was co-athored by head of EU Competition Helen Helly, EU Competition partner Kate McKenna and EU Competition associate Simon Shinkwin

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