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LSE Media Policy ProjectExpert workshop on policies to

promote media plurality

EU and National Approaches to Monitoring Media Pluralism

Prof. Dr. Peggy VALCKE

Wednesday, 2 March 2011

Ofcom’s approach in the light of the

EU Media Pluralism Monitor

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EU & Media PluralismFrom (failed) harmonisation…

•“The directive that never was”- Green Paper on pluralism and media concentration 1992- Studies, Consultation, Follow up 1994- Draft directive on media ownership 1996 (never published)- Essence of the approach:• Legal base: MS ownership rules as impediment to single market• Criterion: Audience Measurement• Threshold: 30% (TV or radio), 10% (crossmedia) • Target: Media controller• Intervention moment: new licence / renewal of licence / takeover

- Dropped in early 1997 - Sensitive issue!

• European Parliament and ESC continue to push EC for action (various resolutions, e.g. EP Res. on the risks of violation, in the EU and especially in Italy, of freedom of expression and information; 2007/2237(INI))

…to monitoring! (Liverpool 2005)

• Background: technological and economic developments => opportunities and threats for media pluralism Urge for: new understanding of / approach to media pluralism

• 2007: EC “3-step approach” on media pluralism:– Commission Staff Working Document (Jan. 2007)– Study on concrete and objective indicators (2008-2009)– Commission Communication (still under consideration)http://ec.europa.eu/information_society/media_taskforce/pluralism/index_en.htm

“Ensuring media pluralism implies all measures that ensure citizens’ access to a variety of information sources, opinion, voices, etc. in order to form theiropinion without the undue influence of one dominant opinion forming power.”

“Monitoring should ensure a much more substantive, evidence-drivendebate compared with the past, able to pinpoint real concerns and lay to rest misplaced fears.”

EU & Media Pluralism

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MEDIA PLURALISM MONITORPracticable monitoring tool to detect threats to pluralismwith differentiated sets of indicators covering pertinent legal, economic and socio-cultural considerations

• Transparency - Evidence (NO harmonisation of policies, concepts, regulation...)

• Holistic (no individual case assessment!)• Unifying different disciplines• EU standardised• Risk-based• User-friendly

EU & Media Pluralism

Diagnosis, no therapy

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Structure MPM

• 6 risk domains (cf. traditional descriptions media pluralism, e.g. CoE)

6 Risk Domains

basic domaingeographical pluralism in the media

cultural pluralism in the

media

political pluralism in the

media

pluralism of media types and

genres

pluralism of media ownership

and control

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Structure MPM• Basic domain

– Unjustified restrictions to freedom of expression, no independent supervision, lack of/insufficient media literacy

• Pluralism of media ownership/control– High (ownership and audience) concentration in terrestrial TV /

radio / newspapers / Cable/Sat/DSL-TV / magazines / internet content provision / book publishing; high concentration of cross-media ownership; vertical integration (bottlenecks in distribution); transparency of ownership structures

• Pluralism of media types– Lack of/under-representation of/dominance of media types or

genres: financial parity, audience parity, distribution of public interest channels (must carry), public’s access to certain content (e.g. events list, short news reporting)

– Lack of sufficient market resources to support range of media; lack of sufficient resources to support PSM

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Structure MPMo Cultural pluralism domain:

• Insufficient representation of European/national/world cultures, insufficient proportion of independent and in-house production in audiovisual

• Absence or insufficient representation of various cultural and social groups in the media (content & HR)

• Insufficient system of minority and community media…

o Political pluralism domain:• Political bias in media (during election campaigns); Politicisation of media

ownership / control; Editorial independence; (In)dependence of PSM and news services; Pluralism of distribution systems; Citizen activity in online media

o Geographical pluralism domain:• High centralisation of national media systems; Insufficient system of local

and regional media (including different types of ownership, investment, access to networks and platforms)

• Representation of local and regional communities (content & HR)• Dominance of limited number of information sources for local issues• Insufficient access to media and distribution systems due to geographic

obstacles (PSM, broadband, newspaper distribution)9

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Structure MPM• Risks measured through 3 types of indicators (166 in total)

– ECONOMIC: assess economic factors having impact on / posing threats to media pluralism

• e.g. ownership/control of media, industry structure, consolidation and concentration trends, geographic distribution, revenue distribution, financing, state aid, audience and advertising shares

METHOD: C4/8, HHI, ratios of proportionality, financial or audience parity…

– SOCIO-DEMOGRAPHIC: assess socio-cultural, demographic, geographic factors having impact on / posing threats to pluralism

• e.g. employment, audience preferences, access of public to data about political affiliation of media owners, availability of certain media content…

METHOD: (quantitative) content analysis, standardised sampling method, expert panel evaluation based on score list/checkpoint list…

– LEGAL: assess existence and effective implementation of legal / regulatory safeguards against certain threats to media pluralism METHOD: analysis of laws, regulations (incl. co/self), case law, press reports…

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Structure MPM

• Covering 3 risk areas (> traditional value chain)

– Supply– Distribution– Use

• Scored on basis of 3 border values (> risk-based approach)

Red: high risk – need for action

Orange: medium risk – attention point

Green: low risk – no need for action

Ofcom’s approachin the light of other

Member States’ monitoring systems

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Examples• Permanent monitoring systems:With possibility of taking action, for example:– Germany: “Vorherrschende Meinungsmacht” (http://www.kek-

online.de)

– Belgium (FR): “significant position” (http://www.csa.be/pluralisme)

Merely mapping excercise (no sanctions), for example:– Belgium (NL): annual report on media concentration

(http://www.vlaamseregulatormedia.be/)

– Netherlands: media (concentration) monitor (http://www.mediamonitor.nl/)

• Permanent news monitoring systems, e.g.:– Netherlands: “DNN” (the Dutch News Monitor:

http://www.nieuwsmonitor.net/)

– Belgium (NL): “ENA” (electronic news archive; http://www.nieuwsarchief.be/)

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Germany:“Vorherrschende Meinungsmacht”

• Unlimited number of TV services as long as no controlling influence on public opinion (§ 26 Interstate Broadcasting Agreement)

– Main criterion: audience share (annual average)– Threshold for presumption: 30% of TV viewers– Cross-media: 25% share of viewers and a dominant

market position in media relevant related markets or overall assessment of activities in TV and related markets suggests influence equivalent to 30% viewer audience share

– Bonus rules: regional window programs on two largest nationwide general-interest channels (- 2%); allocation of transmission time to independent third parties (- 3%)

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Germany:“Vorherrschende Meinungsmacht”

• Sanctions (cases of external and internal growth):– No new licences / no acquisition– Relinquish attributable holdings in broadcasters– Reduce its market position on related, media relevant

markets– Adopt measures to restore and secure media pluralism:

• allocation of transmission time to independent third parties• programme council

– In practice, KEK and the dominant broadcaster negotiate an agreement

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Germany: interpretation problems

• Deficiencies in data, ‘Durchschnittsfiktion’• Calculating cross-media influence on public opinion:

‘Suggestivkraft’ (evocative power), ‘Breitenwirkung’ (broad effect), ‘Aktualität’ (topicality of news)Discussion about appropriate weighting coefficient (Axel

Springer/ProSiebenSAT.1: press = 2/3 of TV)• Influence of Internet and its relevance for public

opinion formation; interplay between media• See: Third KEK Report 2007 (“Cross-Media Relations: A

Challenge for Media Concentration Control”), Fourth KEK Report 2010 (“On the Way towards Securing Plurality across Different Media”)

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Belgium: significant position• Art. 6 Broadcasting Act French Community:

TRANSPARENCY– Towards the public: All editors of broadcasting services have to make

available ‘basic information’ to the public in order to allow it to form its opinion about the value of information and ideas distributed in the programmes

– Towards the regulator: “in order to ensure transparency of ownership and control structures, as well as their level of independence, editors, distributors and network operators are obliged to send the regulator (CSA) the following information:

• identification of shareholders (and % of shareholding)

• interest of these shareholders in other broadcasting or media companies

• identification of natural or legal persons active in program supporting businesses, contributing to a substantial level to the production of programmes.

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Belgium: Significant Position• Art. 7 Broadcasting Act French Community:

monitoring of pluralism

– Who: CSA

– Whom: editors or distributors (single undertaking or several controlled by common shareholder)

– Principle: exercise of a “SIGNIFICANT POSITION” in the audiovisual sector shall not impair freedom of public to access a “PLURALISTIC OFFER OF BROADCASTING SERVICES”

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Belgium: Significant Position• Step 1: “SIGNIFICANT POSITION”?

– Presumption of Significant Position :• 1. natural or legal person holds more than 24% of

the capital of 2 editors of TV services (directly or indirectly)

• 2. idem for radio

• 3. several editors of TV services, directly or indirectly controlled by the same natural or legal person, have an audience share of 20%

• 4. idem for radio

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Belgium: Significant Position

• Step 2: evaluation of pluralism of offer of the editor or distributor -> threat to public’s freedom to access a “PLURALISTIC OFFER”?

= media offer produced by plurality of independent and autonomous media companies and representing the largest possible diversity of opinions and ideas (based on definition of CoE)

= assessment regarding possible repercussions of significant position for the diversity of broadcasting services being offered in the relevant market

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Belgium: Significant Position

• Methodology1) plurality of independent and autonomous media companies = STRUCTURAL PLURALISM

2) representing the largest possible diversity of opinions

and ideas= CONTENT DIVERSITY

i) A plurality of media (number of media available in French Community)

ii) Independence and autonomy of media (ownership structure of private -radio- broadcaster and HHI for television, radio and press sectors

iii) Plurality of opinion (analysis of the news offer in -radio-sector)iv) Plurality of ideas (analysis of other programmes in -radio-sector)

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Belgium: Significant Position

• Step 3: CONSULTATION between CSA and undertaking(s) concernedto reach an agreement (‘protocol’) with a view to

restoring pluralism in the marketCSA can consult competition authoritiesif agreement cannot be reached or is not

effectively implemented within period of 6 months: sanctions by CSA

• warning and/or publication of decision of CSA• suspension of license • revocation of one or more of the operator’s licenses • fine

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Concluding Remarks• Trend towards / need for more sophisticated systems of

measuring / monitoring media pluralism / plurality (consumer versus citizen)

• Ownership matters, but pluralism entails much more comprehensive assessment, looking also at internal pluralism, content diversity, regulatory safeguards (e.g. for editorial independence), relationship between media and political actors

• Growing importance of measuring actual USE• Cross-media assessment increasingly important in light

of convergence (recycling of content) Weighting coefficient for different media? Yes, if based on

empirical data (no generalisation) Impact of Internet?

Thank you for your attention!

Prof. Dr. Peggy ValckeDirector Interdisciplinary Centre for Law & ICT (ICRI-IBBT)

Professor of Law K.U.Leuven & H.U.Brussels, Guest Professor University of Tilburg

peggy.valcke@law.kuleuven.be

NEW

http://www.law.kuleuven.be/icri/psiml/

@ K.U.Leuven