Select Committee on Communications Minutes of Evidence

Examination of Witnesses (Questions 2000 - 2016)


Professor Tony Prosser, Professor Tom Gibbons and Professor Lorna Woods

  Q2000  Baroness McIntosh of Hudnall: May I ask this, and it is purely out of my own ignorance—given that we were talking about remedies. If it had been established that there was a plurality issue at stake here and the secretary of state therefore had been the person determining the remedy, what other remedies might he have had available to him than that which in the end was applied in any event?

  Professor Prosser: Further behavioural remedies, promises by—

  Q2001  Baroness McIntosh of Hudnall: Promises not to buy any more shares?

  Professor Prosser: Not to buy any more shares, or promises of editorial independence. Promises of that kind were used, not very effectively I think, under the old newspaper mergers regime. My colleague knows more about the history than I do.

  Professor Gibbons: These kinds of behavioural undertakings are common in, say, regional newspaper merger decisions. That would be the way to deal with it, to try to retain the editorial framework that previously existed.

  Q2002  Lord Maxton: It seems to me that, yes, the regulators have dealt with the shareholding of BSkyB into ITV but they have not dealt, and seem to be unable to deal with, the other dispute between Virgin and BSkyB over BSkyB not allowing Virgin to show and not paying enough for Sky News and the other main Sky channels. In a sense that has been much more damaging to Virgin than the BSkyB shareholding. Why have they failed to deal with that? Could not Ofcom have said, "You must sell Sky News, et cetera, to Virgin"?

  Professor Prosser: I am trying to remind myself of the powers that Ofcom would have in that situation under the Act. I would need to check up what it could do. I am not sure what the progress of that case is at the moment. I know that there were bitter disputes between the parties and heavy criticism by Sky of Ofcom, but I am not sure whether we have yet had a decision or not.[1]

  Professor Woods: There are also European rules on `must carry'. If you were turning a channel into a `must carry' channel, like the BBC channels are `must carry', it has to be justified within European law as being proportionate, and there are requirements that it has to be a channel that the majority of the population receive. There are therefore limitations there.

  Q2003  Lord Maxton: There is a competition element to it, in the sense that anybody who has Virgin media only has access to one, basic, 24-hour British news service, and that is the BBC; whereas if you have any other platform, including Freeview, you have access to at least two, if not three.

  Professor Woods: Certainly, looking at this from an Article 82 perspective, there are questions now about whether refusal to supply constitutes an abuse of a dominant position; but then you have to go down the whole assessment of, "Have we got a dominant position?". I suppose that, given the pay-TV market is generally regarded as separate from free TV, there could be an argument along those lines.

  Chairman: I would like to bring in Lady Bonham-Carter on diversity of news.

  Q2004  Baroness Bonham-Carter of Yarnbury: Both Professor Gibbons and Professor Prosser have suggested that they think the regulatory regime does not actually tackle diversity of quality of content in a totally satisfactory way. We kept being told that the fact that we have as many different national newspaper titles, owned by seven different groups, means that there is not a cause for concern here. However, do you accept that plurality of ownership ensures adequate diversity of content?

  Professor Gibbons: I am not sure that it does, but I am not sure that I have a solution as to what we can do about it.

  Q2005  Baroness Bonham-Carter of Yarnbury: Perhaps it is the right question!

  Professor Gibbons: Yes. The problem is that diverse owners have a lot in common in appealing to readerships and audiences, and there will naturally be a lot of common ground. To create news organisations to cater for minorities or outlying points of view generally will not be commercially successful. Therefore, I think that the only way one can deal with that kind of diversity of content is probably through some sort of public provision, and that is where, again, public service broadcasting provides an important complement. Other possibilities, I suppose, would be to try to generate a broader debate, perhaps within journalism, about what news is, what coverage of topical issues is, and what should be done, even within the constraints of a commercial organisation—but this is becoming very ideal, I realise. I suppose the other possibility may be to have some kind of tax incentive for certain kinds of, effectively, public provision, just as we have offered public incentives, say, on some of the spectrum. We might think in those terms, therefore. I do not have a thought-out plan.

  Q2006  Baroness Bonham-Carter of Yarnbury: You are not aware of mechanisms, therefore, that are employed in other jurisdictions that actually tackle this?

  Professor Gibbons: There is one, but I do not know whether Professor Woods would like to talk about it—the German one.

  Professor Woods: This is German broadcast media. For dominant channels, they have to carry windows for independent third-party productions. This is going one step beyond somebody being independent and telling you somebody else's view, but actually allowing them to put that view themselves.

  Q2007  Baroness Bonham-Carter of Yarnbury: That is television; that is not printed?

  Professor Woods: That is not the printed press; that is broadcast TV and only applies to the dominant providers. Also, it has not been particularly successful, because they have not really had a stringent structural control. They have a very concentrated market in Germany. If you read commentaries on the German situation, they get by apparently by a strong public service—I think it is Der Bund verpflichtet—in the basic service, with the pay-TV mopping up other things. They have a very big language group; so that they have the benefit of being able to support quite a wide pay-TV market.

  Q2008  Baroness Bonham-Carter of Yarnbury: Andrew Neil suggested to us that, as well as a diversity of ownership, what was important was a diverse way of running newspapers; so that you have the Scott Trust, Mirror Group and family-run enterprises, and so on. I do not know if you would agree with that and, if so, if there is a way in which our regulatory regime could be used to encourage this.

  Professor Gibbons: I think that the diversity of structure, in the way that Andrew Neil was describing, is perhaps not in itself that important. If the structure is reflecting different kinds of journalism, then that is significant. What we might want to do, therefore, is try to encourage, not completely highbrow journalism but the kind of journalism that does try to report as objectively and is as well-informed as possible. It may be that different structures will lend themselves to that kind of reporting more than others. I think that one issue related to structure is the whole issue of transparency. We do not really know very much about who owns or has effective control of newspapers. Yes, there are sometimes proprietors who are better known than others; but, in terms of who has influence, often it is not very clear, and what that influence represents in terms of perspective is not very clear. There might be something to be said for making it much more transparent that a paper or a point of view represents a particular viewpoint. I seem to recall that some years ago there was a survey of newspaper readership which revealed that the readers did not appreciate exactly what the paper stood for. That seemed a little bit worrying to me. This ties into the whole issue of media literacy: trying to educate readerships and audiences into understanding what the media are doing and what they represent. As I said, I would like to see that in the context of a broader debate about journalism. However, I think that structure itself will not be very significant.

  Q2009  Baroness Bonham-Carter of Yarnbury: What you say there brings me on to a point I wanted to pick up on the back of something that Professor Prosser said earlier on when we were talking about the multi-platform media world we live in. You said, "I tell my students not to believe what they read".

  Professor Prosser: On the internet.

  Q2010  Baroness Bonham-Carter of Yarnbury: Indeed, I do the same with my researchers. However, there are a lot of people out there who do not have you to tell them not to believe everything they see on the internet. Increasingly, for a lot of people, young people, that is their source of information. I thought that your dismissal of the idea that regulation has to extend into this area was maybe a little optimistic.

  Professor Prosser: I find it very difficult to see how impartiality regulation could work on the internet, for a start because of its international character. Regulating international media of that kind is very difficult. It seems to me that all we can do is to try to support an alternative, which would be a strong system of public service broadcasting, which does have the necessary filters.

  Q2011  Lord Maxton: I hope that you told your students not to believe everything they hear on the BBC.

  Professor Prosser: I certainly do that as well.

  Q2012  Baroness Bonham-Carter of Yarnbury: It is carrying on from what Professor Gibbons says. It is about education and people's use of it.

  Professor Prosser: Yes. A related point perhaps is that it again seems to me to be healthy to have a broadcasting sector which includes a strong public service element that is heavily regulated, and a press sector which is not regulated in that sense. Again, I think that people do have different expectations from their newspaper, from the BBC or Channel 4 news, or whatever. Again, that seems very healthy in a democracy.

  Q2013  Lord Maxton: It can also be dangerous. I know where the Daily Mail is coming from. I do not know where the BBC is coming from.

  Professor Prosser: I can appreciate that point, but we do have some regulatory controls which attempt to deal with that issue.

  Q2014  Chairman: I will ask one last question. The regulatory authorities—I think we dealt with it but we did it just in passing, and so that I can confirm it—do you think they should have new post hoc powers to intervene if they judge that the public interest criteria become threatened or compromised after the merger has taken place?

  Professor Prosser: I think that I would have to look at the circumstances involved there. If we were talking about monitoring the undertakings that were made at the time of the merger, that is a very familiar situation. It is something that is done by the competition authorities all the time. We are talking here, I assume, only about broadcasting. I do not see how it could work in relation to the press. We could probably build it into the current system in relation to public service broadcasters, for ensuring that the public service remit was met, by amending the particular public service remit. I think that is the only way I could see it working outside the particular question of monitoring undertakings.

  Professor Woods: I assume that if a deal has been given the go-ahead on certain conditions, then the powers already exist, if those conditions are not being complied with, to take action. I am not a pure competition lawyer.

  Q2015  Chairman: I think that is the question. Do they exist?

  Professor Woods: I think they do.

  Professor Prosser: In competition law, yes.

  Q2016  Chairman: But how long do those powers go on for?

  Professor Prosser: That will depend on the undertaking and the condition that has been imposed.

  Chairman: That has been a very interesting and important session. We have covered quite a lot of ground and we would like to think about some of the evidence that you have given. If there are other points which come out of the evidence, perhaps we could come back to you by writing and add to it. Thank you very much for coming today.

1    Note by Witness: Ofcom is currently conducting a review of the Pay TV market including these issues. The outcome will determine whether it needs to exercise its Competition Act powers, which could include issuing directions to end an infringement of the Act. Back

previous page contents

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2008