Examination of Witnesses (Questions 2000
- 2016)
WEDNESDAY 6 FEBRUARY 2008
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
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