Media Ownership and Control: A European Approach
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01960.x |
| Date | 01 July 1994 |
| Published date | 01 July 1994 |
| Author | L. P. Hitchens |
REPORTS
Media Ownership and Control: A European Approach
L.
P.
Hitchens
*
Introduction
Towards the end of 1992 and throughout 1993, companies
in
the United Kingdom
associated with press and broadcasting activities campaigned for changes to the
media ownership and control rules. In particular, many
of
the media companies
wanted to see a relaxation of the rules preventing mergers between those
Channel
3
licensees which operated in the larger regions.’ One
of
the reasons for
the advocacy of change was the fear that media companies from other European
Community countries, such as Italian Berlusconi’s Fininvest and German
Bertelsmann, unhindered by UK ownership and control restrictions, would be able
to step in and bid for these companies.2 At the same time, pressure was also being
felt from the newspaper companies for a relaxation
of
the cross-media ownership
rules.3 The outcome
of
this campaigning was that on
1
January 1994 the
Broadcasting (Restrictions on the Holding of Licences) (Amendment) Order 1993
came into force.4 This order allowed licensees
in
the larger regions to hold
licences in the other larger regions.5 However, the rule that a company holding a
regional Channel 3 licence is restricted to one other regional Channel 3 licence
was not amended despite suggestions that it should be liberalised.6 In addition,
the National Heritage Secretary, Peter Brooke, announced a review of the rules
relating to cross-media ownership. Curiously, although much of the impetus for
the pressure being applied to the Government was the result of anticipation of what
other European media companies might do
in
the
UK
market, public discussion
and debate was conducted entirely without reference
to
a recent European
Commission assessment of the need for Community regulation
in
this area.’
At
the end of 1992 the European Commission published a Green Paper,
Pluralism and
Media Concentration in the Internal Market: An Assessment
of
the Need for
community Action.s
The purpose
of
the Green Paper was to analyse the issue of
concentration in the media (television, radio and press) and the need for action,
and to suggest possible courses of action. Since the publication of the Green Paper,
the Commission has instigated a wide consultation process. Initial responses have
*Faculty of Law. University
of
Leicester.
1
The Broadcasting (Restrictions on the Holding of Licences) Order 1991
(No
1176
of
1991). Article 3.
This affected licensees such as Carlton, Granada, LWT and Yorkshire. See, for example,
The
Independent,
14
April 1993, p 17;
The
Independenr,
2 June 1993, p
5.
Some licensees, eg Meridian,
Anglia and HTV, opposed such changes:
The
Independent,
7 April 1993, p 17.
2 The non-UK media interests of the European companies would not be taken into account in applying
the UK rules, although general competition law, particularly at Community level, might be relevant.
This particular concern arose because, at the end
of
1993, the moratorium on takeovers
of
Channel 3
licensees was
to
end: Broadcasting Act 1990,
s
21.
3
The
Independent
on
Sunday,
6
April 1993, p 3;
The Independent
on
Sunday,
13 June 1993, p 2.
4
SI
1993,
No
3199.
5
Article 2. It is not possible for both licences in the London region
to
be held by the same person.
6
The
Observer,
28 November 1993, p 7;
The Independent,
25 November 1993, p 35.
7 The Channel 3 companies were clearly aware
of
these proposals as a number of them were involved in
8
Corn (92)
480
final, 23 December 1992. Referred
to
hereafter as ‘the Green Paper.’
making submissions
to
the European Commission commenting on the proposals.
C)
The Modern Law Review Limited
1994
(MLR
57:4.
July). Published by Blackwell Publishers.
108
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Road.
Oxford
OX4
IJF
and
238
Main
Street. Camhridgc. MA
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USA.
585
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[Vol.
57
shown that no clear view has emerged as to whether there should be any action at
Community level, or as to the form such action should take.9
The initiative for the Green Paper arose, in particular, out of concerns expressed
by the European Parliament. In its resolution of 15 February 1990,’O the
European Parliament had requested the Commission to ‘put forward proposals for
establishing a special legislative framework on media mergers and takeovers.
’
It is
important to note here that for Parliament the purpose of such legislation would be
to ensure that: minimum professional standards are guaranteed; journalistic ethics
are protected; ‘the risk of subordination of small companies is eliminated; and
freedom of expression for all those working in the media is safeguarded’.
II
Again
in 1992, the European Parliament expressed its concern, passing on 16 September
1992 a further resolution entitled ‘Resolution on media concentration and diversity
of opinions.’ This resolution called ‘on the Member States and the Commission to
safeguard media diversity in the Community in general and avoid differences
between the Member States in the level of protection afforded.”* In both cases,
then, the concern of the European Parliament appears to be the need to protect
freedom
of
expression and to encourage pluralism and a diversity of opinion. This
can be seen also in the second resolution which suggested measures
to
encourage
the presence of non-profit-making broadcasting organisations.
l3
Over the past decade there has been a move in Europe away from reliance on a
public broadcasting model to that of a dual system of public and private
broadcasters; as has been the pattern in the UK for some time. The increasing
presence of private broadcasting systems has produced considerable merger and
acquisitions activity. Between 1989- 90, 81 mergers and acquisitions within the
European Community were announced in the media industry;
37
of these
transactions affecting televi~ion.’~ In 1990 there were some
57
media industry
mergers and acquisitions in the European Community, compared with
20
in the
United States and
6
in the rest of the world (mainly Japan), although the value of
the transactions in the United States and Japan was far greater.I5 It was the degree
of
merger activity and the concern for media concentration which prompted the
European Parliament to call for action. The Commission had previously addressed
the issue of media concentration in its statement on audiovisual policy.I6 Although
treatment of this was brief and essentially referred only to the need for further
consideration, it did acknowledge that Community competition law, including the
Merger Control Regulation, might not be sufficient to address the issues of media
concentration.17 With media ownership and control back on the agenda in the UK,
it is appropriate to examine the European Commission’s Green Paper and to
consider what significance
it
might have for control of media in the UK.
9
European Commission,
Pluralism and Media Concentration
in
the Internal Market: lnitiul Reactions
to
the Green Paper,
Information Memo, 12 May 1993, IP (93) 351. The Commission is presently
engaged in preparing a
report
to
the Council and the Parliament: inlormation supplied by the
Commission,
11
April 1994.
10
OJ
No
C 68,
19
March 1990. 137, at p 138.
11
ibid.
12
OJ
No
C 284,
2
November 1992, 44, at p 46.
13
id
p
41.
14
Booz-Allen and Hamilton,
Study
on
Pluralism and Concentration
in
Media
-
Economic Evuluation,
Final Report. 6 February 1992 (‘the Economic Study’) p 4.34. Media industry here included cinema
and video.
15
id
p 4.35.
16 European Commission,
Communication from the Commission
to
the Council and Parliament
on
17
ihid.
Audiovisual Policy,
21 February
1990,
Com
(90)
78 final, p 21.
586
(c)
Thc
Modern
Law
Rcview
Limited
1994
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