Dáil Éireann debate -
Tuesday, 23 Jun 1998

Vol. 492 No. 7

Private Members' Business. - Broadcasting and other Media (Public Rights of Access and Diversity of Ownership) Bill, l998: Second Stage.

Mr. M. Higgins

I move: "That the Bill be now read a Second Time." This Bill deals with some fundamental matters of democracy. The two fundamental principles proposed in the legislation establish the rights of citizens, rights that are cultural rights, to be exercised in relation to the media. On the one hand it argues that sporting activities, along with some other activities, are so essentially part of the culture and experience of every citizen that they should be enjoyed through the media in a way that is derived from rights and from a cultural space rather than the marketplace. The second principle, which establishes the principle of there being a diversity of ownership is equally derived from cultural rights. It argues that monopoly in the ownership of a form of the media, or forms of the media, limits the diversity to which citizens enjoying a vibrant culture are entitled.

I would have liked to think that all of these matters had been handled expeditiously and that my legislation would be unnecessary. Sadly, that is not the case. When I was Minister with responsibility for broadcasting I recall these issues being raised, correctly, with some energy by those then in Opposition. They seemed to be convinced of the first principle that those who have been enjoying sport were entitled to continue to do so without any intrusion of a purchased right from the marketplace. The difference however is that we were, at that stage, in preparation of a new television sans frontie res— television without boundaries — directive. An article of that, later to become Article 3a, clearly established the principle of which I speak. We were waiting to see if we could act in concert in Europe to vindicate this right which is a right not just of citizens within the jurisdiction but one that is also enjoyed by those who are outside the jurisdiction but who are interested in the events involved. Put plainly, the Irish in Birmingham, in Coventry or elsewhere are as affected by an exclusive claim placed on sporting rights as some of the Irish at home. Consequently, when the final text of the revised “Television without Frontiers” directive was passed in June l997 there then existed the capacity to take the action that I thought was agreed upon on all sides of this House in the past.

It is important that I speak about something else in this context. Perhaps this will explain as well the urgency that attaches to this legislation. Before the end of this year Sky Television will offer digitalised service and perhaps television boxes which will come pre-encoded. It will be too late. One will have missed the whole signing of contracts period. This is not just a legal concern. We could put it more dramatically. At the moment many people are watching the World Cup. That is a separate argument but it is an example of the context with which I am dealing, and I will return to it later. The Kirch Foundation in Germany has purchased the rights of the World Cup in 2002 and 2006, and if citizens in Europe are to see it without the inhibition of capacity to pay, the European Broadcasting Union will have to deal with that foundation and try to purchase the rights back and they in turn will be passed on to citizens. I will leave that issue aside for the moment because it is not the essential one, but it is germane in the sense that we do not have the time to delay until the main broadcasting legislation is published at the end of the year. When I was Minister I was pressed to bring in the legislation on this matter as a matter of urgency, even though I knew it could be best implemented on a Europe-wide basis.

Article 3a of the revised directive, which was accepted in June l997, states:

1. Each member state may take measures in accordance with Community law to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis events which are regarded by that member state as being of major importance for society in such a way as to deprive a substantial proportion of the public in that member state of the possibility of following such events via live coverage or deferred coverage on free television. If it does so, the member state concerned shall draw up a list of designated events, national or non-national, which it considers to be of major importance for society. It shall do so in a clear and transparent manner in due and effective time. In so doing the member state concerned shall also determine whether these events should be available via whole or partial live coverage, or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage.

2. Member states shall immediately notify to the Commission any measures taken or to be taken pursuant to paragraph 1. Within a period of three months from the notification, the Commission shall verify that such measures are compatible with Community law and communicate them to the other member states. It shall seek the opinion of the Committee established pursuant to Article 23a. It shall forthwith publish the measures taken in the Official Journal of the European Communities and at least once a year the consolidated list of measures taken by member states.

The force that the revised directive, and particularly Article 3a, was that the European states would act in concert against the forces of monopoly as it were robbing the citizens of Europe of the right to participate in the cultural events to which they had become used. That was the reason, we having established our list, Britain had effectively gone ahead in the l996 Broadcasting Act and listed eight events. The advantage of our doing the list after the directive was that we would be acting in concert. We also would have been making something real out of the Ninth Protocol to the Amsterdam Treaty which spoke specifically about the importance of different states being able to help public service broadcasting widen its remit and secure investment and expand in entirely new and challenging conditions.

I do not intend to give very many quotes, but one would be very relevant in relation to that first point I made about the right to view sport as a citizens' right rather than as a facility purchased in the marketplace. Mr. Rupert Murdoch has said: "Sport will be the battering ram for pay television". The context of the legislation I speak about this evening is one in which we have to make up our minds, late in this century now, whether we are going to vindicate citizens' rights in relation to the media and do it through directives that have been established in concert with our European partners, or simply drift or refuse to implement something that is clearly within our capacity to implement. That would be quite monstrous. If we decide to abandon our responsibilities in this regard, the implications are clear.

I wish to say some more about the issues that are at stake in regard to the first principle of the legislation. On another occasion I will speak about how all of what I have described is made far more dangerous by the arrival of digitalisation, irrespective of the form by which digitalisation is introduced. Effectively it will be argued, rather like the old argument that anyone passing the Shelbourne was free to go in, that people will have a choice of hundreds of television programmes and that they can become their own programmer as long as they pay for it. Indeed, the current operation of pay television in relation to sport is interesting because those who have secured that part of the market have split the sports channels they have had and doubled the imposition on those whom they were willing to rob of a citizenship right.

Let us note the principle that is at stake here and why I say it is of the utmost democratic importance. The principle is one of universal access. It is rather like saying to people they have a choice to make. One might say one had a right to health, irrespective of one's ability to pay the highest priced consultant. One is arguing for the principle of universal access within citizenship and within a theory of active culture. If, on the other hand, one says that a television programme is a commodity, like a tin of beans, and it is a matter of simply having the money to purchase it, one is arguing effectively against the democratic ethos of broadcasting, but the principle is one of universal access.

The context in which this argument is being made is one in which there have been four major trends that I can discern in relation to broadcasting, not just in Europe but in the western world, one of which is convergence. There is a consistent con job going on in that regard, the idea being that people should be mesmerised by the developments in technology. Three kinds of convergence are clear. A convergence of technology that will combine the computer, the television set, the telephone and whatever, but also the idea that we must invest in Europe at such a speed as to be able to be in competition with Japan or the United States, that everything to do with citizens' rights or the impact on the society is tedious. Thus there is regular tension at three levels of the Commission between the Commissioner responsible for the introduction of new market services, the Commissioner responsible for the Internal Market, Commissioner Monti, and Commissioner Marcelino Oreja who is responsible for cultural diversity. Put bluntly, the cultural Commissioner and his arguments are always treated residually, hence the cultural expression is rather weak. That is the technical convergence.

Much more serious is the convergence of markets and, beyond that, a convergence of content. Left neatly aside is consideration of the second most important dimension in regard to what is happening in the media in general in terms of concentration of ownership. The draft directive on concentration of ownership was promised more than two years ago. It is still not in place and now it appears that when it does come, it will not be a directive enforceable by law but rather an expression of what should be a code of good practice by those who "gobble up" the ownership of the media internationally, we meanwhile having removed every inhibition to State regulation within the member countries of the European Union.

Part of the great alienation in Europe by citizens is that they are saying, even on the doorsteps in the recent referendum on the Amsterdam Treaty, they did not realise that is what they voted for — the destruction of every State regulation and provision and open season for oligopoly and monopoly internationally in ownership of the media. That is why, for example, Time Warner, after its latest merger, becomes No. 47 in the list of the largest corporations in the world. The cross-links between Disney, for example, Turner, which is part of Time Warner, West-inghouse and General Electric are a map of a set of unaccountable conglomerates. If a person goes out in the evening to see "Titanic" or "The Full Monty", buys a magazine on the way home——

Mr. Kenny

With the chips.

Mr. M. Higgins

——and then watches a pay TV channel before going to bed, that person has been buying from Rupert Murdoch all day. We are drifting into a totally unaccountable scenario where there are few attempts at dealing with this new important force on all of our lives.

In the 1980s, the late and distinguished Raymond Williams wrote in his book Television — Society and Cultural Reform of the need for a new approach internationally to protect the rights of the person who simply wanted to communicate. We are dealing with an issue in a context that is extremely urgent. This trend of convergence is not neutral and there are no neutral decisions in delivery systems in any form of the media.

In regard to the concentration of ownership, I recall figures which showed that in the Sunday print media, one company has an ownership of approximately 90 per cent, approximately 66 per cent of the dailies and somewhere between 15 per cent and 18 per cent of the regionals. They are all independent.

In the 1980s I wrote about an uncontradicted article which appeared in Forbes magazine on 12 September 1983 concerning an interesting interview with the owner of the major newspaper involved and containing a most unusual quote. The interviewer was Rosemary Brady. It stated:

Atlantic Resources Managing Director Donald Sheridan who was recruited from his post as chief geologist at Marathon Oil, had long suspected that oil lay in the rocks of Jurassic Age about 160 million years old, in the Celtic Sea. Says O'Reilly: "Don chose six blocks he believed in. Since I own 35% of the newspapers in Ireland, I have contacts with the politicians. I got (licences for) the blocks he wanted".

Then O'Reilly went to talk to his neighbours down the street from H.J. Heinz in Pittsburgh, Gulf Oil Company. The two U.S. companies agreed to pay 7.5 million dollars for their two-thirds stake in the project.

I make reference to this because the perception of ownership in relation to what can be used is a matter of democratic interest and accountability.

We are often told there must be reforms in relation to the law of libel because it is in the public interest. Is it not in the public interest that there be some limits also in relation to ownership? The legislation I propose on behalf of the Labour Party is a moderate proposal. It simply prevents a person, body or corporate entity having more than 25 per cent of any two media.

The reason for that is that we are committed to the principles of diversity in terms of the media and that plurality of opinion is in the interests of the reader. The reader is entitled to more than an assurance pompously given. We all know that owners of the best calibre historically in the world never interfered with their editors, who never interfered with their journalists, who never interfered with those who worked in the office. It is not good enough for citizens that such a mild assurance be offered. We are entitled to accept that when a person reaches a ceiling of ownership, passing that ceiling is an abuse of a dominant position.

The second part of the Bill deals with an upper limit on ownership. Lest anybody be tempted to suggest that those two points are not necessarily convergent with each other, I argue against that. That is a point to which I will be delighted to reply, if necessary, but I serve a warning for those going down that rhetorical blind avenue. The famous principle in drafting legislation and jurisprudence, used by the late distinguished John Morris Kelly, eiusdem generis, dealt with a specific case, for example, where proposals were afoot that would have led to the destruction of most of St. Stephen's Green, planning permission would be required to change the door knockers but not to knock the building. It would also be needed to build a replacement. That vacuum in the law was addressed in the principle that the totality of effect had to be taken into account.

If the right of citizens to the airwaves is to be vindicated we must deal with the ownership question. It makes no sense that the Commission would agree to a rhetorical proposal which would not achieve its full force unless all the lists are established by different member countries and at the same time abandon, as has been done, the concentration of ownership directive.

In this context also is the principle of inclusion or divisiveness. The suggestion that a person will have greater choice than ever before because they will dip into their pockets more often than ever before is not only a manifestation of fragmented television audiences, it is also profoundly divisive in society. There are principles in broadcasting policy that have governed the best of broadcasting in Europe and elsewhere, principles such as universal access and social cohesion. These are important points in which society was entitled to its story in its diversity. Minorities in society were entitled not only to be recognised as minorities but to have their moment in the public space. That is the set of principles which is offended by Rupert Murdoch's idea that the battering ram of pay television will be sports.

It is important to bear in mind that in this legislation I am not defending something old-fashioned. Those who vote against the legislation will be voting against principles of democratic universal access. They will be leaving open time to the likes of Rupert Murdoch and News International to make even further gains between now and the end of the year. One more round of contract documents will be signed in the autumn and more will have been lost.

As somebody responsible for broadcasting from the Labour Party perspective, I wish to make it perfectly clear that diversity and inclusion, and the access to which I referred will come about accidentally from the marketplace. The hypothesis is that sooner or later everybody will have enough money to put together all the pay television channels they want, that a loose conjury of passive people will purchase entertainment, as is their right. I am not interfering with that, but there are skill requirements of public service broadcasting, recognised here and in the European Union, waiting to be implemented in Article 3a and vindicated by one speaker after another in the European Parliament.

We are not being taken over or overtly threatened, but there is a tendency — this is one of the blackest times in my political life — to allow things to slip away from us. We are allowing the notion of a citizenship theory with cultural rights and developing broadcasting to wither away while we have a straight run in the marketplace. There are people who are interested in sport and they are losing their rights. It is offensive that people such as Rupert Murdoch can say they will watch sport only when a local pub has paid a subscription towards a pay television channel. They are interested not only in home matches but also when Ireland plays abroad. People such as, for example, Turks in Germany and Irish in England, have rights.

The delay in implementing this directive has clear implications for the requirements under the British-Irish Agreement for broadcasting in Northern Ireland and Britain — if Scottish independence comes about there will be further implications. The future in broadcasting cannot be left to economic competition. In terms of keeping public service broadcasting alive, if there was an open competition internationally for the coverage of sporting and other events, what licence fee would be needed to compete? The fee required to cover the present World Cup is exactly twice that required for the previous World Cup. It is unknown what it will be in 2002 and 2006.

There are key elements to support my statements. Citizens are entitled to the provision of accurate and independent news, the expression of the full range of political views and cultural values, education and entertainment and universal access to programmes that are free at the point of use. We were always at an advantage in terms of the quality of our broadcasting compared to that of the BBC, which has high standards. In that context there were principles of independence in Government, pluralism of information, cultural diversity, social cohesion, universal access and the protection of minors, competitiveness and jobs. The public interest is best served by a public policy that is driven by values such as those I listed, values that are clearly enunciated and are the subject of public debate and accountability. The public interest is seriously undermined by silent acquiescence in the power of unaccountable capital or by being transfixed by technology.

The Council of Europe's publication, In From the Margins, which refers to the importance of all citizens of Europe having the right to express their creativity, makes sad reading. The publication of the special UN commission on culture, Our Creative Diversity, published last year, referred to values such as those to which I referred.

It is very interesting that we are now at a transition point. In the past, if one looked at the history of ownership and broadcasting legislation and countabilities of different kinds, one was able to achieve it because there were boundaries within which one could implement it but that has totally changed. I am thinking of another quote which struck me when this issue was debated in the House of Lords. Some would suggest it is an unusual place for me to find a reference but, in comparative terms, it is quite progressive in discussing broadcasting. Last February Lord McNally said that if freedom of the press can be imperilled by restrictive laws, it can also be threatened by restrictive ownership. It is not in the democratic interest to have such a degree of concentration in ownership in the print media. It would be even more destructive of the public interest if measures as moderate as this legislation were voted down. We would at least establish between forms of the media some kind of limits in relation to ownership across the principle of cross ownership.

As well as that, there are interesting heartening tendencies and passing this legislation would be a very European act. As I mentioned, the hinge to Article 3a of the directive, is each country establishing a list of what is important. These lists will be taken together because we must remember that one is implementing the directive not for one's citizens at home but also in accordance with the principle of exterritoriality — that it will have force outside as well. Europe has badly damaged itself by stalling and losing its nerve in resolving the dispute between three Commissioners — the Commissioner with responsibility for the introduction of new services, the Internal Market Commissioner and the Commissioner with responsibility for cultural affairs. Commissioner Monti who prepared a draft directive at one stage, which spoke about an upper limit of 10 per cent in the combined media and 30 per cent in any one media, has long abandoned that proposal after opposition by those who make the following argument. Here we encounter the incredible naked force and ignorance of the marketplace. The suggestion by his two fellow Commissioners and by many in Europe that the issue was in putting together a conglomerate large enough to take on the Time Warners in the United States and international competition and that was the way to go. It was a case of who would hold one back. I heard that argument here — the idea being that our Irish or European conglomerates are important and that when they have reached a scale, they will then be able to deal with those who threaten and dominate.

Information on how people dominate is very interesting. Britain used to have, more or less, a £160 million favourable balance with the United State in relation to audio-visual product. In 1995 there was a deficit of about £163 million. Sky Britain pays £300 million for imported United States programmes. We have probably lost something of the order of 250,000 jobs all over Europe by losing the possibility of developing the audio-visual sector. In Germany, for example, there is a combination between Kirch and Bertelsman, the purpose of which is to put together a combination which will be strong enough to compete with the likes of the Time Warners. That is totally destructive. It was purchased by getting a French channel to withdraw from Germany.

Are we to say we are all helpless and that these people need not care what we, as parliamentarians, think? The answer is they do not care. This issue is still important and there are Irish people who are very interested in the sheer decency of there being a variety of opinions and they believe one will get better practice and more accountability by having that diversity. What I propose in the legislation is good for the public and journalists. I have read material from places where journalist are prepared, trained and produced as graduates. Anthony Smith writing in England or anyone writing in any of the great universities which have studied journalism will say a journalist professionally flourishes in a context in which there is plurality of opinion, where there is diversity of ownership and where there is no possibility of the abuse of a concentration of ownership. It does matter that the public gets the same transparency they look for in politics or in any other decision taken on their behalf.

I will be interested to hear whether those who wish to speak against this legislation accept all these principles and their proposals to redress the present drift if they vote down our legislation. I am not constructing a great black scenario. I could list one country after another. In Spain, Recoletos, a subsidiary of the UK media group Pearson which owns the Financial Times, has shares in broadcasters, including 17 per cent of BSkyB and 25 per cent of the new private channel, Channel 5, and has joined Telefonica to make a 10 per cent stake Antenna 3 TV controlled by a telecom company. I am not arguing that one form of the media can never co-operate with another, although there cannot be joint investment decisions. I am not against investment but against monopoly, oligopoly and a Commission which continually hectors and lectures about the reduction of every state inhibition, puts its face against forms of regulation, stays silent and abandons the concentration of ownership and publishes documents from the cultural Commissioner which are merely rhetorical if, at the end, they can never be implemented because there are no guarantees of a plurality and a diversity of stories, which is all the citizens of Europe want. They want it from film and television and to see it in newspapers. They want to know that even if they do not have much money or great resources, they count as a citizen.

That is what the great literacy projects were all about. It goes back to Tom Paine and the debates about the rights of man. The literacy debate in Britain in its day was one example where it was said the working class would be fine if it confined itself to the Bible but it wanted to read Tom Paine's pamphlet on rights as well. It is about access and the citizens taking these new developments in technology and using them as instruments for deeper, better and more humane communication with each other and for education and training leading it universally, for example, perhaps through the television set and later through the marketplace, which is real, purchasing new services for which they may wish to pay.

There is a great difference between exercising a choice in the marketplace and being dominated and abused by the marketplace in which one is forced to exercise a choice. In the first part of the Bill we talk about people being compelled to purchase in the marketplace as consumers that to which they are entitled, culturally and otherwise, as rights. In the second part we ask that there be no amalgamation of ownership which will lead to the perception that there could be a breach of the principles of diversity of ownership and plurality of editorial opinion.

I have not once in my contribution referred to any one particular instance because that is not what I am about. I am simply attempting to set the media in such a way that it is democratic and accountable and also that it is socially cohesive and inclusive. It is necessary to do it now because we are in conditions of rapid change. If we neglect it in these circumstances, every neglect will be simply geometrically increased as we face into new and more complex divisions. Cuireann sé áthas orm an Bille a mholadh.

Minister for Arts, Heritage, Gaeltacht and the Islands (Miss de Valera)

The Bill presented by Deputy Higgins gives us a timely opportunity to discuss important issues regarding access to television coverage of major events. The possibility that many events, in particular major sporting events, will migrate to television services provided on a subscription or pay-per-view basis is one which has been a matter of concern at national and European level for some time.

I want to make it absolutely clear there is no difference in principle between Government policy and the objectives of section 1 of the Deputy's Bill. There is a clear commitment in the programme, An Action Programme for the Millennium, that access to major events will be protected and I have gone on record repeatedly indicating that I propose to honour this commitment by giving effect in Irish law to Article 3a of the Television Without Frontiers directive. My proposals in this regard are quite advanced, and I hope to circulate a draft memorandum for other Ministers' observations shortly.

The Broadcasting and other Media (Public Right of Access and Diversity of Ownership) Bill, 1998, highlights two important elements of our heritage and our every day lives. On the one hand sport has long been an important part of daily lives and offers different levels of participation. Those of us not lucky enough to be able to participate in sport at the highest levels have been able to participate through coverage on television. Thus major events become a shared experience at community, local and national level. Success, or indeed simply a good performance, at a national or international level can be an important morale booster for a county or a country. The prospect of Clare winning another All-Ireland will not immediately add to the general happiness of the people of Cork. How many of the followers of hurling, not lucky enough to obtain a ticket for the Munster or All-Ireland Final, would feel deprived if they could not follow the action live on television unless they paid a significant subscription or pay per view fee to a commercial broadcaster?

This brings me to the other important element raised by Deputy Higgins' Bill, the concept of broadcasting as a public service. I, and I believe the House will, acknowledge that Deputy Higgins both in Government and before has long been a champion of this cause. This Government believes that every person has a basic right to a reasonable level of communications. Broadcasting in the classical European mode has set out to provide this right and that this concept which envisages a service provided on what is now generally referred to as "free" television or "free to air" television is still of vital importance. If one looks to the vastly increased number of television services becoming available through digital broadcasting and to the emergence of the information society and the concerns which these phenomena raise about the creation of a divergence between the "information rich" and the "information poor" within our society, it can be argued that the role of free to air broadcasters, particularly those with a public service remit to provide a universal service and to cater for a universal audience, is increasing in importance.

Viewers in Ireland have traditionally enjoyed access to major events, sporting and otherwise, through the services of RTÉ. A substantial proportion of the population has had access at relatively reasonable rates to the services of UK terrestrial broadcasters who have sought to cater for a wide audience taste. In the past, given the demands on the radio frequency spectrum for broadcasting purposes, the number of broadcasters has been necessarily restricted. In this scenario, coverage of sporting events was itself restricted in that broadcasters who were attempting to cater for a wide range of tastes with one or two channels could only cover a limited range of events. However, in the last ten years the emergence of satellite delivered broadcasting services, operated on an almost entirely commercial basis, has changed the broadcasting map considerably. We have seen the emergence of channels dedicated only to sports events. It is undeniable that these channels have provided increased choice to those fans who can afford the price of such services.

The potential of digital broadcasting to vastly increase the capacity for the provision of broadcasting channels has already begun to cause revolutionary change. Commercial services have discovered the importance of sport to their schedules. The market for any kind of programming with popular appeal is becoming more and more intense leading in turn to increased costs in acquiring broadcast rights. In addition some sporting organisers and clubs have begun to explore new ways of providing coverage of their events beyond the confines of the stadium where such an event might be played. The relationship between the broadcaster who provided essential technical expertise and the organisers of these events who may be able to acquire such expertise more easily now than in the past is changing. The area of broadcast rights is becoming increasingly complicated. We have seen reports of disputes between BSKYB and the English Premier League about terrestrial rights versus satellite rights, digital as opposed to analogue, subscription as opposed to pay-per-view rights.

In this fluid situation it is difficult to be confident about the precise shape of the broadcasting future. At a technical level the future of broadcasting is largely uncharted. We must therefore be clear about our objectives in bringing forward proposals of this nature. The objective is to ensure that every person has, as far as is possible, a right to a certain level of participation in society through the provision of broadcasting services. What we are dealing with here are events that go beyond the interests of the committed fan and are events which undeniably have a special resonance with society as a whole or at least a substantial proportion of that society. RTÉ has provided us for many years with the opportunity to follow major sporting events on television. Hopefully TV3 will add considerably to our range of choice. However, through RTÉ we have all been able to participate in sport at a national and international level. We have been able, through television, to participate in the efforts of our international soccer team, our athletes at the Olympic Games and other major occasions. We have been able to share in their successes and to sympathise when success was not achieved. We have shared this experience as a community, we have experienced together the disappointment of losing and the joy of winning or even a good performance.

While individually we might experience these emotions at different levels of intensity there are few among us who do not go about our business with more spring in our step when our athletes do well at the Olympic Games, when our international soccer or rugby team wins an important match, or when our county players beat an old rival to win a championship. This goes to the very heart of our society and of the way we want to live as a community. It is right and proper for legislators to be concerned when the availability of participation is threatened. No person should be excluded from participation of this nature simply because of economic circumstances. The lack of money should not be a reason for alienation.

We must acknowledge the contribution to our society made by those involved in the administration of sport at all levels. Many have given long years of service at times to their clubs and associations and through them to society at large, often with little reward. Those in charge are custodians of a proud tradition and it would be wrong to give the message that we believe that they are about to exclude the general public from participation in the premier events of their respective sports. Sport itself has undergone considerable change over the years. The vast amounts of money which have become available to participants, organisers and clubs through sponsorship has had significant and not always positive effects on the way sport is organised. The importance of television rights is increasing. Sports administrators have an increasingly complex task in balancing the interests of their sports, the participants and the public. We owe a considerable debt to participants in sport at all levels for the efforts which they have put into achieving success at national and international level. It is only fair that they should get the rewards for their dedication, skill and talent. These efforts must be acknowledged and any legislative steps should be taken in a spirit of consultation and co-operation consistent with the public good.

I have no difficulty in principle with the object of Deputy Higgins's Bill. The mechanism which he chooses — legislating to introduce the provision of Article 3a of the television without frontiers directive — is the mechanism I indicated I would use myself. However, it must be borne in mind that section 1 of Article 3a of the television without frontiers directive is not a mandatory provision. The section provides that each member State may take measures to ensure broadcasters within its jurisdiction do not broadcast events regarded as being of major importance to society in a way which deprives a substantial proportion of the population in the State of the opportunity of following such events via live or deferred coverage on free television. We are not required by virtue of our membership of the European Union to introduce such measures. Accordingly, any measure which we take to give effect to section 1 of Article 3a of the directive will be our own substantive law.

I have difficulty with the detailed provisions of the Bill. In introducing such legislation, the objects must be clearly and expressly seen as being in the public interest. I accept Deputy Higgins has provided for public consultation in drawing up a list of events. However, in addition to public consultation, specific and express criteria for declaring certain events as being of major importance to society should be included in the legislation and these have to be carefully developed and teased out. We are dealing with the private rights of the organisers of events which might be listed as being of major importance to society. No criteria for the selection of such events are included in the Bill. No protection of the event organisers is included.

The objective of introducing legislation of this kind is to protect the access of viewers to events which can be clearly seen to be part of our broadcasting heritage. The action is being taken in the interests of viewers — in the public interest. It is necessary for such legislation to be clear in its intent and for it to be seen as proportionate. I find the lack of specific express criteria a fundamental flaw in the Deputy's proposals. The provisions in section 1 are too broad and all-embracing and do not sufficiently safeguard the proper rights of organisers.

Neither am I convinced of the need to impose criminal sanctions in legislation of this nature. I have a problem in principle in criminalising broadcasting activity, even when the broadcaster is seeking to maximise their audiences through any means at their disposal or to maximise the return from their audiences regardless of who can afford their services. I am also far from convinced as to the practicability of criminal sanctions as any attempt to enforce them will of necessity take place after the event, will require very high levels of proof and, in terms of the sanctions proposed, would be of questionable deterrent value if we are dealing with major events.

While I cannot be too forthcoming about the detail of my own proposals in advance of Government approval, I would prefer a system where, if it appears the legislation is to be breached in relation to a listed event, action can be taken before viewers are deprived of the opportunity of viewing the events on free to air television. I would also like to see a system where, if breaches occur, broadcasters who provide a universally accessible service, or as near to that goal as is practically possible, who have not been allowed through the activities of another broadcaster to provide coverage of a listed event, have a right to seek substantial compensation from the broadcasters operating in breach of the provisions.

In this regard, it would seem to me that it is better to explore the opportunities for civil remedies rather than criminal sanction. There are other matters also which require further thought, in particular definitions of "universal service" and "free television". Accordingly, while I compliment Deputy Higgins on his Bill and assure him I am pursuing the same objectives, it is better to wait for the Government to bring forward proposals on this matter. I assure him that he will have every opportunity to contribute to the debate when the Government's proposals are dealt with in the House.

On the provision in section 2 relating to the prohibition on the concentration of media ownership, I do not have functional responsibility for the Competition Act, 1991, which the Deputy proposes to amend. However, I share the Deputy's concerns in this matter. Concentrations of media ownership was a topic examined by the Commission on the Newspaper Industry which was established in 1995 and which reported in June 1996. The commission, chaired by Mr. Justice Thomas Finlay, was asked to examine all aspects of the newspaper industry and to make recommendations. The commission considered that the media outside newspapers consisted of television, radio and magazines. It felt that concentration of media ownership in these sectors and between these sectors and newspapers had the same potential for limiting or impeding diversity of views and opinions in a manner harmful to the democratic process as concentration of ownership in newspapers alone.

The commission concluded that the extent of cross ownership between different sections of the media in Ireland is limited. It mentioned the practice whereby the interests of local newspapers in local radio stations were confined to not more than 25 per cent and noted that no similar restriction applied to the ownership of local newspapers by local radio stations. The commission pointed out that some sharing of ownership between local radio and newspapers could have an advantageous effect on the journalistic standards of both without significantly impairing diversity of views.

The commission reported that while Irish newspapers have a minimal interest in other branches of the media in Ireland, a number of UK publishers have substantial interests in television stations which transmit to and are received in Ireland. It went on to say that an extension of interest by Irish newspapers in television and radio might strengthen their competitive capacity and any such developments would be relevant to any intervention based on this type of media ownership. The commission finally concluded that there were no grounds at present for intervention by the State on the basis of undue mediawide ownership in Ireland.

The recommendation of the commission dealing with cross media ownership was:

Any issue of concentration of ownership in the media should be considered on a mediawide as well as on a single media basis and in any such consideration effect should be given to the difference in consequences arising from such concentration in one branch of the media and concentration in different branches of the media.

In October 1997 the Tánaiste referred this recommendation along with two others dealing with newspapers to the Competition and Mergers Review Group. The group was established in September 1996 by the then Minister for Enterprise and Employment to review and make recommendations on the mergers legislation in the context of a legislative consolidation, the effectiveness of competition legislation and associated regulations, cultural matters in the context of the 1991 Act and, in particular, section 4(2) of the Act, and appropriate structures for implementing the above legislation.

The review group is chaired by Mr. Michael Collins SC and is representative of IBEC, ICTU, ISME, the Consumers Association of Ireland, the Law Society and the Bar Council. It also includes representatives of the Attorney General's office the Department of Enterprise, Trade and Employment and a specialist in competition economics from University College, Dublin. The detailed work of the group has been proceeding but to date has concentrated on merger law and policy. In the overall context of competition, including abuse of dominant position legislation and the Mergers and Take-overs Acts, the group is now addressing the recommendations of the Commission on the Newspaper Industry which Deputy Harney referred to it in October 1997. The group is expected to present a comprehensive report to Deputy Harney for her consideration later this year. Until such time as this report is received and considered, I do not believe that it would be appropriate to contemplate changes to the competition Acts.

With regard to competition law and how it operates in the area of the media, the position is that under the Mergers, Take-overs and Monopolies (Newspapers) Order, 1979, a merger or take-over where at least one of the enterprises is a newspaper as defined in the order, is subject to the Act, notwithstanding the turnover or assets size of the enterprises involved. Newspapers are defined as any periodical which consists substantially of news and comment on current affairs. This definition covers both newspapers and magazines.

Section 5 of the Competition Act, 1991, prohibits the abuse of a dominant position by one or more undertakings. This section is analogous to Article 86 of the Treaty of Rome. In this regard, Deputy Higgins' proposal seems to depart from national and EU legislation in that it seeks to make a dominant position, rather than the abuse of a dominant position, illegal. Under the provisions of the Competitions (Amendment) Act, 1996, an aggrieved person or the Director of Competition Enforcement can take proceedings against an undertaking which they believe is abusing its dominant position.

While the Commission on the Newspaper Industry examined cross media ownership in terms of newspapers, magazines, television and radio, because of its terms of reference it did not address other forms of media such as the Internet. The Deputy is correct in recognising that one of the issues to be faced in this area is the rapid growth in technology and the way that this will affect policy. The traditional boundaries between broadcasting, information technology and telecommunications and between these sectors and newspapers and magazines are being blurred to some extent in the information age. Careful analysis is needed in developing definitions of relevant markets.

I understand that the review group is engaged in this exercise. I support controls on cross media ownership and the principle as communicated in the Deputy's proposals. However, I am advised that the proposal in the Bill is unlikely to be fully effective in this regard. As I have already stated, Deputy Harney has asked the competition and mergers review group to look into this issue and it is not due to report for some time. Clearly the issues involved are complex and we should have the best advice available before we address this issue in legislation. Deputy Harney has undertaken to forward the Deputy's Bill to the review group for its information. The provision as proposed by the Deputy seems to give the Minister for Arts, Heritage, Gaeltacht and the Islands specific powers under competition legislation. While there is a broadcasting perspective to be brought to this issue, I am not convinced that such a proposal would be effective or appropriate.

I thank Deputy Higgins for advancing the debate on these important issues by bringing forward his proposals. My reason for opposing the Bill is not one of principle but that these matters are being addressed carefully and urgently by Government. In relation to the protection of access to major events, my proposals are imminent. Accordingly, I am opposing the Bill.

Mr. Kenny

I welcome this Bill which has two central components. First, the transposition into Irish law of Article 3a of the European Union Broadcasting directive and, second, the defining of the limits of cross ownership of different media which are defined as: broadcasting, including terrestrial television, newspapers, magazines, satellite and digital television and other cable and MMDS services and Internet services. Deputy Higgins is to be complimented for bringing forward this Bill.

The Minister's response is typical of the Department's response during the past 12 months — everything is being considered carefully and studied at great length and a result always appears imminent. The House is going into recess in early July and we will not see legislation such as the Broadcasting Bill before the end of the year. The first section of the Bill is timely given that the World Cup is taking place at present and the Tour de France will come to Ireland in a few weeks. Ireland is a very small player in the rapidly developing technology and interactive information age. However, Irish people have the same rights as everyone else. The diversity spoken of by Deputy Higgins is essential.

Rupert Murdoch owns the film archives of a number of countries and companies. Through Sky Sports he also owns the rights to premiership soccer, the US Open Championship and the Ryder Cup which will take place in Ireland in a few years. Every major boxing match in the US in the past 15 years has been in the same position. Not only does one have to subscribe to a satellite channel, one must also pay for the right to watch specific events. I have an avid interest in a broad range of sports and I object to this position. I can see why the commercial lust of people involved in this business is driven to these limits.

Some US basketball players earn $80 million and $100 million per year. Commercial advertising, sponsorship and sporting success generate mega bucks for top international sports men and women. Television rights and the right to watch these people compete are central to this. I would be the last to decry any person's achievements in terms of effort or talent, but no human performance is worth, in money terms, the phenomenal figures paid to international and world class sportspeople. In that sense, the proposal to implement article 3a into Irish law is very welcome. In fairness, Deputy Higgins told the Minister that if her proposals are being carefully considered and a report is imminent, she should accept the Bill and introduce amendments on Committee Stage. I am sure Deputy Higgins would welcome that. That would be a legitimate and worthwhile response from the Minister.

The public consultation process would give individuals, organisations and sporting groups an opportunity to tell the Minister why they consider their performances should be included in the list of sporting activities which would have a national or international significance or cultural importance. While we may talk about the Olympic Games, the Tour de France or the Ryder Cup in this context, people might want the bowling championships in Cork or currach racing in Connemara included in coverage. The commission on newspapers did not examine cultural matters because it was not within its terms of reference.

This is a good start and I accept the principle of the Bill. People should not be pressurised into going to their local golf club, public house or centre, where the tab has been paid for Sky Sports, to watch sporting events, particularly since many households now own two or three television sets. They should be able to watch such events in their own homes in the company of their families. The commercialisation of sports is having a detrimental effect on society. The Minister stated that her proposals will shortly go before Government and that a report is imminent. I would like to hear her views on the sporting events she believes should be included.

Cross ownership of the media is a complex area and difficult to control. When in Opposition, the British Prime Minister knew he could not win the election without the help of the newspapers and the printed media and set about a deliberate campaign of enhancing his position by wooing the newspapers to his side to achieve victory. This demonstrates the importance of the printed media. In its report the Competition Authority stated:

The concentration of control of several papers under the proprietorship of a single individual could reduce the independence of the papers and could narrow the range of news and information which should be properly diversified. At the extreme, there might be the danger that undue political influence could be exercised or information suppressed or distorted.

If one were malicious enough, one could say this element of Deputy Higgins's Bill is a pay back in that it could be viewed as a strike at Dr. O'Reilly of the Independent Group.

As one who suffered the onslaught of the direction given by the Irish Independent prior to the last election to vote the then Government out of office, I feel somewhat aggrieved. I am not suggesting that because The Kerryman is owned by the Independent Newspaper Group the editor might be influenced by the owner to the extent that he might write an editorial or an article that could influence political opinion in that part of the country. If that is the factual position, subliminally at least, or by perception, that stream of thought could begin to emerge in time. This Bill addresses that danger.

The 25 per cent to which Deputy Higgins referred is a relatively small number given that it allows for practically full ownership of a different media. It is fair to say that local newspapers are constrained by law in terms of the percentage of ownership of local radios they can hold, but the same does not apply in a reciprocal sense. Some local newspapers have an investment or a percentage ownership in some local radio stations in excess of what the law states, but that is because of a requirement for further investment due to lack of resources and so on.

Control of cross ownership is critical and very difficult to achieve. In the extreme, dominance within cross ownership can lead to political influence. In its report, the Competition Authority states:

Competition helps disperse power and thus is beneficial to a democratic society. The latter consideration is all the more important when one is dealing with arrangements which impact on the ownership and commercial control of newspapers which themselves play a vital role in a democratic society.

The concentration of ownership and control of newspapers and other forms of news media is particularly undesirable in a democratic society. Guarantees that editorial independence will be maintained are of limited usefulness where an individual or a single entity exercises some degree of commercial control over a number of competing newspapers. Indeed, such guarantees are virtually worthless and the only way in which independence can effectively be maintained is through diversity of newspaper ownership.

The competition authority, therefore, states that cross ownership of newspapers and other forms of news media is unhealthy in a democratic society. This is a democratic Parliament and Members share these principles, asserted by the Minister and outlined by Deputy Higgins. There is no reason, following the studies which have been undertaken to date, the Bill should not be taken on board by the Government, brought to Committee Stage and amended appropriately.

Earlier I spoke of the huge commercial lust in international sport on the part of those who control it. Ireland is a very sports conscious country and there is a genuinely strong reaction to being forced either to get a satellite dish or to go to a centre to watch a sporting occasion. The Minister rightly refers to the emergence of channels dedicated to sports events. In the past 12 months there was strong talk that Manchester United, for example, would have its own sports channel. It is a matter of great concern when one considers that parents and those who follow the team, who already have to fork out for very expensive jerseys, boots, logos and other paraphernalia, might have to pay for the right to watch matches in which the team was playing.

Deputy Higgins spoke of the Irish diaspora in Britain and the United States. It would be difficult for Liam Mulvihill to say "no" if Sky Sports offered him £30 million up front for rights to all All-Ireland semi finals and finals in football and hurling for the next ten years. Those who left and became navvies in the US and Britain or who are technologically minded geniuses, young entrepreneurs or financially driven people, with an allegiance to Clare, Galway, Cork, etc., want to watch their teams in action and the rights we have had and which are so much part of our culture and personality could be taken from us if such a transaction took place. This is a matter of greater urgency than it is being credited with.

Recently I listened to Norman Whiteside, the youngest player to play in a soccer World Cup. He spoke of one of his early matches for Manchester United where the fee for playing was £14 and the bonus for winning was £600. When this is applied to our era, where top players in the British premier league can earn up to £40,000 per week in addition to endorsements, we can see how this roller coaster lends itself to clubs having their own television channels and making consumers, the bait in the business, pay for the right to watch matches.

I thought the Minister would accept the Bill, the principles of which she has already endorsed, bring it to Committee Stage, amend it if she sees fit, and bring it into law.

The commission which examined these issues said:

Any issue of concentration of ownership in the media should be considered on a mediawide as well as on a single media basis and in any such consideration effect should be given to the difference in consequences arising from such concentration in one branch of the media and concentration in different branches of the media.

I would have preferred if the report made solid recommendations rather than leaving it so vague as it creates a problem for the Minister and her officials in the context of what it means in a practical sense and how it is to be translated into controllable and effective law. It is a timely recommendation as it is dangerous not to have diversity of ownership or the competitive element which now applies in all walks of life, and will apply more as time goes on, with semi-State bodies being sold, competition in an international and national sense being opened up and increased transparency. Perhaps in replying to the debate the Minister will elaborate on her views and those of the Department and the report she is making to the Government in respect of this recommendation by the commission.

Local radio stations do not have the reciprocal right to unlimited ownership of newspapers and periodicals, something referred to in the commission's report. The dissemination of information, in a technological and printed sense, is moving so fast there is a blurring of the issue for ordinary citizens. Recently at the Intel plant in Leixlip I spoke of an American investor who has been coming here for years. He described his vision of the future as spooky. He explained this by saying that the product being created by the 1,000 people dressed in moon suits with glass visors in a sterilised environment in the plant is half the size of a person's thumb nail and holds a billion pieces of information. Ten years ago this concept was an impossible dream, similar to the suggestion 15 years ago that every premier soccer match on television would have to be paid for or subscribed to, a suggestion people would have dismissed as total nonsense and something which would never happen. If things move as fast over the next ten years there will be an even greater revolution in global information. In this sense it is time to put down a marker and say we have compiled a list of sporting events and occasions, following public consultation, which we believe are important to our society, culture and the personality of our people and which should be freely available to the people. The cross-ownership levels referred to in the Bill should be enshrined in controllable and effective law.

Debate adjourned.