21st Century Fox’s proposed purchase of SKY.
On 16th March 2017, the Secretary of State issued a European Intervention Notice on the grounds of media plurality and commitment to broadcasting standards. This decision triggered action by Ofcom to assess and report to the Secretary of State on the public interest grounds specified and for the Competition and Markets Authority to report on jurisdiction.
Following this, on 29th June 2017 the Secretary of State released her minded-to, not final, decisions. The Secretary of State then accepted representations on her minded-to positions until 14 July. She will now consider the evidence she has received before coming to a final decision on both grounds of media plurality and commitment to broadcasting standards.
Under the Enterprise Act 2002, the Secretary of State for Culture, Media and Sport has a quasi-judicial role that allows her to intervene on the basis of specified media public interest considerations. These considerations, set out in the Act, refer to the need for there to be a sufficient plurality of media ownership, for the availability of a wide range of high-quality broadcasting and for those with control of media enterprises to have a genuine commitment to broadcasting standards objectives.
In the interests of transparency, the Secretary of State gave a statement to the House on 20 July. The Secretary of State must fully consider all relevant representations before reaching a final decision, she will take the time needed to look at the many received, balancing the need for careful consideration of relevant evidence with the merger parties’ legitimate need for a prompt decision.
You can read the debate on the statement or watch a recording of it on Parliament’s website by following the link below:
Given the Secretary of State is acting in a quasi-judicial basis under the Enterprise Act, one of the things she is required to do is act without undue delay, in the interests of all parties. Therefore, it is expected that a final decision on referral will be made in the coming weeks. The law, passed by a previous Government, only allows the Secretary of State to take into account evidence presented when reaching a decision, rather than political views expressed or general lobbying.
One point that many commentating on this takeover have missed is that as superfast broadband reaches more homes the number of people accessing media via a traditional broadcasting system will decline, particularly given the increasing ownership of Smart (Internet enabled) TVs that can directly stream content.
Subscription or broadcast services that purely operate via the Internet, such as Netflix or Amazon Prime, are not covered by UK broadcasting or media ownership regulations, only rules around the use of copyrighted materials and defamation. For example those who listen to our local radio station Riviera FM already do so via the internet, not a broadcasting system.
News websites which generate, rather than just relay news from Print or TV\Radio outlets, are also growing in popularity. This presents challenges about the quality and accuracy of information being circulated as some deliberately use exaggerated or misleading headlines as clickbait for their sites to drive up advertising revenue. These sites are not covered by existing media watchdogs leaving an expensive defamation action as the only option if they refuse to correct themselves.
A good example of this change in the media was the law being changed last year to include using the BBC IPlayer in the rules for a TV Licence. This was due to growing numbers accessing BBC programmes on demand, whilst avoiding paying for a TV Licence by not watching live broadcasts or having a TV set in their home.
The internet makes a vast choice of information and media choice available in a way that would have been impossible in the past, but it also presents a fundamental challenge to the way UK Broadcasting has worked and been regulated for decades. We may soon see a media landscape where the biggest and most influential companies are online services, not traditional broadcasters.
Kevin Foster MP
0207 219 4711 \ 01803 214 989
Twitter: @kevin_j_foster
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