Dr. Roderick Flynn:

To begin, I should establish my interest and competence in this area. For around seven or eight years, working under the auspices of thae DCU Institute of Future Media, Democracy and Society, FuJo, I have been working as the Irish principal investigator on a number of European research projects.These research projects all relte to the European Media Freedom Act. One of these which is probably the best known is the media pluralism monitor project which directly informs the framing of the proposed Act. I have been principal investigator on the European Commission-funded and European University Institute-led media pluralism monitor since 2015. This assesses actual and potential threats to media pluralism in Ireland under 200 headings. I am also principal investigator on the Broadcasting Authority of Ireland, BAI-funded Media Ownership Ireland website which currently allows the public to identify at a granular level the ownership and control of Irish-based and Irish-facing print, broadcast or online media outlets. I was in Salzburg last week and we have just commenced work on the Irish element of the Euromedia Ownership Monitor, EuroMo, led by the University of Salzburg and funded by the European Commission. EuroMo adopts a deeper but narrower approach to understanding how editorial content may be influenced not merely through direct ownership and control but also indirectly through, for example, informal associations between media owners and non-media actors in for example politics, business, trade unions and civil society organisations.

All of these projects put together illustrate how just much attention is being paid to matters of media pluralism and concentration for some time now and how much concern there is internationally, and particularly at EU level, about the manner in which the changing political, technological and economic climate in which media operate is challenging their capacity to fulfil their constitutive role in the operation of a healthy democratic polity. In considering the Act itself, many of articles address risks to media pluralism which our research on the media pluralism in Ireland have identified as relevant to the local situation. I want to draw attention to five articles in particular, but we can talk about more, which may require some significant legislative and regulatory change in Ireland if we adopt the Act in its current form.

First is Article 4 which Mr. Dooley has referred to and this emphasises the importance of editorial independence for media service providers and insists that states shall not subject journalists to surveillance. In this regard the fact that the update of the Communications (Retention of Data Act) 2022 makes no special distinction between journalistic communications and all other forms of communications effectively means that journalists, like all other citizens, potentially remain subject to surveillance. This has been identified as an issue in 2017 by a report by former Chief Justice John Murray and has not been addressed in the update of the Act.

Article 5 emphasises the need for transparent, open and non-discriminatory procedures for appointments to public service media chief executive and board positions, for example RTÉ and TG4 here. Currently appointments to both of these boards are exclusively determined by the Minister with responsibility for communications, albeit partially subject to the advice of this committee with regard to four of those appointments. While I am not suggesting that those boards are populated by political allies of the administration which appointed them, I can see little or no transparency surrounding how such individuals are selected for appointment. The last set was appointed in July 2021 and I can find no record of a public debate about who these people are and why they should or should not be appointed. For the record I am not saying they should not have been appointed.

Article 6 requires media service providers to make the names of their beneficial owners easily accessible.This is the ultimate controlling owner of a media company. In practice this data is available in Ireland in nearly all cases through the auspices of the mediaownership.iewebsite which I look after. However there is no absolute requirement in Irish law for media owners to make this information available. In fact not all Irish media which could be on the media ownership website are there because I do not know and cannot find out the information, at least not through legitimate means.

Article 21 requires that national legal systems assess media concentration on a “transparent, objective, proportionate and non-discriminatory” basis. This would seem to imply setting quantitative limits to market dominance within a given media market or across a number of media markets. Such limits are simply absent in Irish legislation as it stands. It has been argued by the BAI, as the relevant regulator, that there is no objective basis for such limits and that the impact of specific media mergers on media market concentration should be considered on a case-by-case basis. While it is important to retain some scope for flexibility in these matters, it is questionable whether such an essentially ad hocapproach can be compatible with admonitions in the European Media Freedom Act to be ““transparent, objective, proportionate and non-discriminatory”.

The last one I will point to - and it is the one we have been pointing at in the Irish Act every single year for the last seven years - relates to state advertising.

Article 24 argues that public authorities should make annual declarations of how much money they have spent on advertising, and which media service providers received such advertising revenues. In this regard, Ireland is particularly lacking. According to Nielsen Media Research, spending by Government, social and political organisations now constitutes the third largest category of advertising expenditure in Ireland. It was worth €69 million in 2021. Covid conditions, admittedly short-lived, saw the HSE alone become the seventh largest advertiser in Ireland in 2021. However, there is no publicly available database of how State advertising is allocated to media service providers. The data are simply not collated by Departments or public service institutions. Although there is no evidence that advertising expenditure is allocated in a discriminatory manner, nor is there evidence to the contrary, not least because we know, and this is important, there are EU member states where state advertising is precisely deployed in this manner, which is intended to secure editorial support for the government of the day. These are the key points I would draw to the committee's attention.