Should Jeremy Hunt give up his powers to intervene?
I was slightly remiss in my coverage of the green light given by the Culture Secretary Jeremy Hunt to News Corporation’s plan to buy British Sky Broadcasting, in failing to highlight the following statement by the Office of Fair Trading:
“The OFT also advises the Secretary of State that the amendments to the Revised UIL (undertakings in lieu) do not address the essential structural limitation identified in the report, that the UIL offered are unlikely to be practically and financially viable over the long term”.
If you’ve read this far, you are probably scratching your head: I had better translate.
The competition watchdog was advising Jeremy Hunt that the conditions he is imposing on News Corporation - which are designed to maintain the independence and distinctiveness of Sky News - are unlikely to be effective for more than seven-to-ten years.
Or to put it another way, if News Corp succeeds in buying BSkyB, and if then News Corp does as ordered and floats off Sky News into a new stock-market listed company - which would be 39% owned by News Corp but would have its own board, independent chairman and independent editorial committee - that would preserve Sky News as a distinctive voice in news, more-or-less separate from Rupert Murdoch’s News Corp until around 2020.
But after that, according to the OFT, all bets are off. Sky News could then become completely subsumed into the Murdoch's sprawling news empire, which in the UK includes ownership of the Sun, the Times, the News of the World, and the Sunday Times, inter alia.
So if preserving the autonomy of Sky News is the sine qua non of adequate media plurality in the UK - which is what Mr Hunt has acknowledged - then media plurality (or a sufficient diversity of news providers) would be in jeopardy before this year’s school entrants are sitting their GCSEs.
Now, in the context of the longevity of the brands that have dominated news in the UK throughout the decades of mass media - like the Times, the Sun, ITN, the Telegraph, Mirror, Guardian, Mail and BBC - that doesn’t seem far off.
But it does seem like an eternity away at a time when the technology for distributing news and the business models of news providers are changing at lightspeed and in unpredictable ways (a big hello to the iPad, online paywalls and Twitter).
Either way, the impermanence of the shackles or undertakings in lieu put on News Corp - as perceived by the OFT - offers the best hope for opponents of the takeover, such as BT and the owners of the Telegraph, Mail, Mirror, Guardian and so on, that the courts could frustrate or delay the deal.
So as and when Mr Hunt comes to a final view on all this, having reviewed the submissions he has received during last month’s consultation, what could he do to protect himself from judicial review?
Well he could adopt a recommendation made to him by Ofcom, the media regulator, that would give new powers to Ofcom to initiate investigations of the media industry as and when it believes that plurality is under threat, or when it perceives there may be inadequate diversity of life-forms in the news jungle.
Right now Ofcom can only conduct such a review when asked to do so by the culture secretary in the context of a takeover bid. But quite apart from what you might call the Murdoch issue, the technological revolution in news may well make it sensible - for the health of democracy - for Ofcom to be permanently and continuously scrutinising the health of the ecosystem in news (couldn’t resist the management-speak jargon - sorry).
There is one other thing Mr Hunt could do to reassure those who fear that the big media beasts, such as Rupert Murdoch, will always get their way, because governments live in terror of alienating and upsetting them.
The culture secretary could announce that when it comes to the final adjudication on media plurality issues, he and his successors will be castrated - that he plans to adopt the competition law model, where the regulator’s word is final, and where politicians are wholly removed from the decision-making process.
It is something he has been thinking about, although he does not have a settled view on it.
If he were to give up his role as judge in media plurality cases, that could increase public confidence that verdicts on whether to allow the expansionist ambitions of any particular media mogul would be taken without the risk of a minister’s judgement being tainted by fears of said mogul exacting his or her revenge in the columns of the Daily Bugle.
Apart from anything else, I do not believe that Mr Hunt, or indeed the prime minister, relish being widely characterised as the lapdogs of Mr Murdoch, however far from the truth they may feel that characterisation to be.
Even so, although the depoliticisation of media plurality decisions is a seductive idea, there is a problem with handing that baby over to Ofcom, in all its pink and burping beauty. Media plurality is a young legal construct, invented by the last government, and no one is quite clear exactly what it means.
Also, if media plurality is essentially about conditions in the media that are essential for healthy, lively democracy and culture, it may be quite tricky to argue that the judgement of our elected representatives has no part to play.