In the second post of our media plurality series, co-hosted with the LSE Media Policy Project, Justin Schlosberg of Birkbeck, University of London discusses his latest research that examined civil society proposals for media plurality measures and models. He argues that such limits and thresholds could limit media power with minimal impact on the market.
What was exposed beyond any doubt at the Leveson Inquiry hearings was the scope of informal access to ministers enjoyed by major media groups, and their willingness to use those channels to ‘communicate’ regularly and intensely in the build up to plurality decisions. We now know that Jeremy Hunt at best misled Parliament about the personal contact he had with News Corp lobbyist Fred Michel in 2011, during the supposedly ‘transparent’ process of deliberation over News Corp’s bid to buy out BSkyB. That was over and above the more substantive contact between his office and News Corp revealed to Leveson in a series of email exchanges. It is for this reason that the majority of civil society groups – and indeed the majority of the public – have come out strongly in favour of fixed ownership limits as a means of restoring transparency and accountability to plurality policy.
“Clear bright lines” are not “blunt instruments”
Ofcom – in line with commercial media interests – have suggested the opposite: that the power to decide when and how to act on plurality should instead remain with ministers. The arguments underpinning this view rest on a number of shaky assumptions. For one thing, it is often taken for granted that fixed ownership limits are ‘blunt instruments’: that they can unduly penalise groups who merely innovate or survive whilst leaving others untouched who are no less impacting on public conversation.
The sub-text here is that measures upon which ownership limits would be based (such as consumption or revenue metrics) cannot take account of contextual factors which can determine a media group’s ‘share of voice’ and may not be detectable through quantitative indicators of market share. What’s more, the argument goes, media markets are particularly dynamic and subject to rapid change which a static system of ownership limits would be ill-equipped to respond to.
These arguments fail to address the nuances of proposals for ownership limits, many of which stipulate lower and upper thresholds triggering a range of remedies according to specific circumstances and market conditions. My examination of six non-industry proposals submitted to the Lords Select Committee on Communications inquiry into the issue found the following to be the most common:
A Possible consensual position based on most common positions in civil society responses
The concept of ‘absolute limits’ is often assumed to denote a market share threshold at which companies would be forced to either divest or close down. But in fact, we can look at absolute or ‘ceiling’ limits in two distinct ways: an outright prohibition on any group or company that breaches the limit, or a prohibition on any controlling interest within a company that breaches the limit (Ofcom has already provided detailed guidance on how to determine a controlling interest in media companies).
If the latter framework is accepted for remedies in appropriate circumstances (i.e. where straightforward divestment would threaten the viability of a given title as a going concern), there is little basis on which to assert that fixed limits will act as deterrents to innovation of growth. And provided that any system of fixed limits is subject to regular periodic review, there is no reason why ‘clear bright lines’ in plurality policy cannot offer both flexibility and certainty so desired by the industry and Ofcom.