Denis Naughten (Roscommon-Galway, Independent) | Oireachtas source

I thank the Ceann Comhairle and the Members for their kind words.

I thank Deputies Catherine Murphy and Shortall for facilitating this debate on media plurality as I believe a strong and pluralistic media is at the heart of a free and open democracy. An important tool in protecting and supporting media plurality is the current media merger regime established under the Competition Act 2002, as amended. This process provides for the assessment of proposed mergers and acquisitions which qualify as a media merger under the Act. During this process, a proposed transaction is first assessed by the Competition and Consumer Protection Commission, CCPC, on competition grounds. Should the CCPC clear the transaction to proceed, it is then referred to me to conduct an initial assessment of the likely impact of the transaction on plurality in the media in the State. In making my initial assessment, I must have regard to the relevant criteria provided for in the Act, the guidelines on media mergers prepared by my Department and the notification material provided by the parties, among other matters.

Following my assessment, I have the option to allow the transaction to proceed, to allow it to proceed with conditions, or to refer the transaction to the Broadcasting Authority of Ireland for a phase two or full media merger examination. In those cases that are referred for a phase two examination, the authority must make a recommendation whether the merger should be allowed to proceed, whether it should be allowed to proceed with conditions, or whether it should not be allowed to proceed. I must then make a final decision on whether the merger should be allowed to proceed, whether it should be allowed to proceed with conditions, or whether it should not be allowed to proceed. Many of the terms used to conduct these assessments are defined in section 28A of the 2002 Act and these definitions are of crucial importance to ensuring the effective operation of the assessment process.

Turning to the Bill, I want to address the second amendment first, as it raises a number of serious concerns. The main issue here is the proposed power to retrospectively break up media businesses. Serious concerns have been raised regarding the location of the proposed amendment to section 28L of the principal Act, which provides for the guidelines on media mergers. I am advised that such a power would require primary legislation and, as such, the location of the proposed amendment is therefore inappropriate.

On the subject of retrospective action, in the current legislation the Oireachtas has not provided for powers to retrospectively examine, review or intervene in past media mergers from a media plurality perspective because to do so would raise significant constitutional issues.

One of the difficulties that would require to be balanced is the right to private property, as enumerated as a fundamental right in Article 43 of Bunreacht Na hÉireann. While provision is made for the Oireachtas to regulate private property rights, interfering with these rights on an ex post factobasis raises a myriad of legal complexities, including the potential for compensation, none of which is addressed in this Bill.

Another difficulty is giving a Minister the power to break up an existing media business if its share of a media sector or across media sectors exceeds a certain threshold. The latter is not defined in the Bill. One of the consequences of the proposed use of a definite threshold is that, as one media business fails, another media business could, by default, find itself above the thresholds set, and the Minister for Communications, Climate Action and the Environment would have the power to break up that business. Furthermore this proposal directly interferes with the freedom of the media. What media business would criticise the Government if the Minister for Communications, Climate Action and the Environment had the power to break it up at any time? This level of uncertainty and risk is not conducive to a healthy media sector and could lead to a situation where media businesses could close because investors were afraid to invest, which — despite the good intentions behind the Bill — would damage media plurality.

I want to briefly turn to the first amendment, which is redundant because "reach" is already defined in this section as "the proportion of a population or audience that consumes any part of the output of a media business in a given period" and this definition encompasses any "reach" associated with a media business, whether digital or analogue. Furthermore, if we were to delete other appropriate measures, it would weaken the legislation as it would restrict my ability as Minister for Communications, Climate Action and the Environment to use other metrics for measuring diversity of ownership as they become available.

I want to address an issue Deputy Catherine Murphy highlighted. She said that no database exists of the ownership of media, but that is not the case. A database of ownership is contained in the Broadcasting Authority of Ireland's Report on Ownership and Control of Media Businesses in Ireland 2012-2014.

I have said previously that there is an issue with respect to how we support quality journalism. We need to consider having a broad debate on journalism and content, because it is important that we have content on which people can rely. So-called "fake news" is an issue that came up in the US presidential elections. It was an issue that I addressed at a debate in Dublin a month prior to it raising its heading during the US presidential election. It is something that is a big challenge in this technological time but there is no viable way of legislating to prevent it.

Investment in quality journalism, I believe, is the only way. This may be through supporting journalists individually through bursaries or it may be that one would support some kind of public service remit across journalism, whether in print or broadcast. I have no fixed view on it but, as Deputy Murphy knows, I have asked the members of the Oireachtas Joint Committee on Communications, Climate Action and Environment to consider these complexities surrounding the funding of quality journalism and come forward with their suggestions. I look forward to hearing their proposals in this regard.

The public has respected institutions such as our national newspapers. As with our national broadcasters, it is important that this trust remains. It needs to be supported and this broader debate is taking place on my instigation.

Finally, I believe the current regime to assess media mergers is working well. The matters and criteria which I must take into account when conducting an initial assessment, and which the BAI must take into account when conducting its full assessment, ensure that I, as Minister, can make a decision which protects media plurality in the State. I do not intend to make any amendments to the current system, especially amendments which, I am advised, are legally unsound, despite the Deputies' best intentions. For these very important reasons, I oppose the Media Ownership Bill 2017. Despite the good intention, I therefore recommend that the Bill be opposed.

See this speech in context