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Dáil Éireann díospóireacht -
Wednesday, 14 Mar 1979

Vol. 312 No. 9

Mergers, Take-overs and Monopolies (Newspapers) Order, 1979: Motion.

I move:

That Dáil Éireann, pursuant to the provisions of Section 2 (6) of the Mergers, Take-overs and Monopolies (Control) Act, 1978 (No. 17 of 1978), hereby confirms the Mergers, Take-overs and Monopolies (Newspapers) Order, 1979 (S.I. No. 17 of 1979), made under Section 2 (5) of that Act.

The Mergers Take-overs and Monopolies (Control) Act, 1978 is such a recent enactment that I am sure I need not go into any great detail regarding its various provisions. Deputies will no doubt recall the constructive level of debate we had in this House prior to the Act's passage into law. A few brief words on the Act might, however, be useful at this stage.

Section 2 applies the provisions of the Act to any merger or take-over where the gross assets of each of the enterprises involved exceeds £1¼ million or where the turnover of each exceeds £2½ million. Any such proposed merger or take-over must, under section 5, be notified to the Minister. The proposed merger is then either approved or referred for investigation to the Examiner of Restrictive Practices. In the latter case, the Minister may, having considered the examiner's report and if he thinks that the exigencies of the common good so warrant, either clear the proposed merger or prohibit it either absolutely or except on conditions specified in the prohibiting order.

Deputies may recall that a good deal of the discussion on the Act on Committee Stage in this House centred on section 2 (5). That subsection allows the Minister, where he thinks that the exigencies of the common good so warrant, to declare by order that the Act applies to mergers of a particular class, despite the fact that the enterprises involved in a merger of that class may be below the qualifying assets or turnover "threshold" specified in section 2 (1).

Deputies may also recall that during the debate in the House on section 2 (5), the use by the Minister of his powers under that subsection was discussed at some length. The main instance mentioned where an order might be made was the newspaper sector. It was agreed at the time that this would probably be one of the first areas which would be looked at under the section. If I remember rightly, Deputy Kelly fully supported the making of a newspapers order.

Accordingly, the Minister made an order on 25 January 1979 entitled, "Mergers, Take-overs and Monopolies (Newspapers) Order, 1979". While the order was effective from that date, it is nevertheless required under section 2 (6) of the Act to be confirmed by a resolution of each House of the Oireachtas within 21 sitting days in each case. The effect of the order is that any proposed merger or take-over, irrespective of the size of the enterprises involved where at least one of them is engaged in the printing or publication of newspapers should be notified to the Minister under section 5 of the Act.

Such proposals would then be submitted to the tests of the Act and would be accordingly either approved immediately by the Minister or referred for more detailed investigation by the Examiner of Restrictive Practices. As I have already indicated, this latter investigation would be followed either by a clearance, or absolute or conditional prohibition. By virtue of the application of all of the machinery of the Act it will be recognised that there is a realisation that all proposed mergers in this area will not be prohibited. It is accepted that there will be mergers which for various reasons it would be in the public interest to allow to proceed. On the other hand it is essential that the Minister should have the necessary powers to allow him to act in cases where a proposal in this very sensitive sector would not be in the public interest.

I do not think it is necessary to go into any great detail about the sensitivity of the newspaper sector. Given its very responsible function of informing the public, the Government must be concerned to ensure that as wide as possible a variety of outlets for the public expression of opinion is preserved. Conversely, I think the House will agree that generally it would be very undesirable to have the dispersal of views and opinions on matters of public importance vested in an ever-decreasing number of hands, whatever the reasons for this decrease might be.

It is also true to say that for the past number of years there has been an overall trend towards steadily increasing concentration of the press. The evidence of this trend is that more newspapers are forming part of publishing groups controlling substantial proportions of total newspaper circulation.

I am confident that the House will agree that it was right to make this order and that it will support the motion proposed.

On behalf of the Fine Gael Party I warmly support this motion. My recollection is that it was I who mentioned in the House that the newspaper world was one which cried out for control irrespective of the money size of the business in terms of assets or turn-over. In welcoming the motion I wish to put three points for the Minister's attention in the hope that she will bear them in mind and, perhaps, in respect of two of them, amend the form of the order now or at a more convenient time. The criterion which the Minister mentioned is the same as I would have supported, the importance of preserving as wide a variety of opinion as possible and the accessibility for the public to as many different kinds of opinion as possible. I agree that the process whereby newspapers would tend to become concentrated in an ever-smaller number of hands is an undesirable process nationally.

It seems, looking back at the Act, that we were probably all at fault—I must carry my own share of that blame—in not drawing attention to the relative unsuitability of the criteria mentioned in the Schedule to the Act for the purpose which the Minister is now trying to effect. I did not make this point then. The criteria mentioned in the Schedule to the Act entitled the examiner to consider the desirability of a merger against a set of different standards. None of these is really appropriate to the standards which the examiner should have in his mind in connection with the proposed acquisition of newspapers. The values which the Minister has given expression, with which I agree, namely the desirability of preserving as diverse a range of opinion as possible and the desirability of giving it as varied an expression as possible, do not fit comfortably into any of these criteria. It is possible, by twisting words, that one could describe a newspaper as providing a service but it seems that it would be a reasonable interpretation of the expression, "provision of service", to regard it as something more material than the provision of a range of opinions.

Quite clearly criteria (b) to (h) do not have anything to do with the value to which the Minister has given expression. It is conceivable that one might squeeze the value the Minister has mentioned, and with which I agree, into criteria (i), namely the interests of the consumer. However, I can imagine an honest examiner taking the view that the word "consumer" in its ordinary sense meant the consumer of material goods and that what he was being mainly asked to do was to guard against a monopoly which could, by making a corner, drive prices up and keep them up. The consumer element mentioned in those criteria does not, naturally, include the consumer in the sense we are talking about, the potential recipient of opinions. I make that point without rancour because it is just as much my fault as the Minister's for not having made sure that the Bill when it was going through the House was so drafted that it would comfortably accommodate the value of diversity of opinion. It seems to me that the criteria mentioned in the Schedule do not comfortably or obviously include it.

The Minister, when replying, should at least informally tell the Dáil that it would be her intention, in the event of the examiner deciding that the criteria in the Schedule do not entitle him to take into account questions of diversity of opinion or questions reflected in the values which the Minister mentioned, to amend the Act in such a way as to make it clear that the criteria which would then be in the Schedule include the desirability of making sure that the range of opinions available to citizens is not curtailed by the acquisition of newspapers and that the value, which is mainly an issue here, is the value of diversity of opinion. An honest examiner might find himself unable to extract that value from the criteria in the Schedule. The Minister should look at that matter to see if she can give the Dáil the undertaking I have asked for.

The other points I wish to make are, essentially, drafting ones. I do not advance them contentiously but I should like the Minister to look at them and, perhaps, amend this order by a further order. In my view the order is unnecessarily broad in its present drafting. Article 3 of the order states:

It is hereby declared that, notwithstanding section 2 (1) the Mergers, Take-overs and Monopolies (Control) Act, 1978 (No. 17 of 1978), that Act shall apply to proposed mergers or take-overs of the following class, namely, proposed mergers or take-overs involving enterprises at least one of which is engaged in the printing or publication (or printing and publication) of one or more than one newspaper.

It does not make it clear that what we are aiming to do is to prevent newspapers from being taken over. As it stands this article would subject to scrutiny, quite unnecessarily, the take-over by a newspaper enterprise of an enterprise which had nothing to do with the formation of opinion or the expression of it but was quite a subsidiary thing, for example, a distribution enterprise. When one looks at the definition of "merger" in the Act one finds that a merger is there defined as including a transaction involving enterprises one of which may be completely outside the State. The control envisaged by the Act is engaged if even one of the enterprises involved is in the State. For example, suppose the Independent Group wished to acquire a distribution agency in the form of a company in the North of Ireland—that is not an impossible situation—they will be brought within the scrutiny, irrespective of the relative modesty of the distribution agency, of the Act by the wording of the order as it now stands.

I am not trying to raise a scare about this and I know the Minister or the examiner will not behave unreasonably but the drafting of the order appears to be excessively broad in this regard. There is no need to include transactions of that kind. We are aiming to prevent the taking over and either extension of or excessive control of an organ of opinion which at present is independent. In doing that the order appears to be casting a net over transactions of a different and completely innocuous kind. I do not think that is what the Department intended, or if it is, it does not come through in the Minister's speech.

The third point I wish to make is that the definition of newspapers in the order could be improved. Were I drafting the order from scratch I would do it differently. As it stands the newspaper is defined as a periodical consisting substantially of news and comment on current affairs. There are provincial newspapers in which less acreage is devoted to news or current affairs than to advertising. There are also important little organs circulating in city suburbs which consist almost entirely of advertising but with a certain minimal content of news and comment of a local kind. Politically, it is of an important kind. Those papers are known as throw-aways and have a very large circulation. One of those papers could not be said to consist substantially of news and comment on current affairs but, nonetheless, for the purposes we are speaking about they ought to qualify as a newspaper and be subjected to the same measure of scrutiny as the Minister intends for larger newspaper enterprises. I would like to see this Act interpreted in such a way as to include throw-away journals which circulate in the Dublin suburbs and other places. However, as article 2 of the order is drafted it appears that they are outside control. It seems that it would be possible to take over a company which runs Southside or other throw-away publications while avoiding the control which the Minister is trying to achieve.

I agree that it is only in a humble way that one could describe a paper with local news and comment as an organ of opinion but it may be politically quite important. I would have wished that take-overs of that kind would be just as much under control as take-overs of more regular newspapers. That is apart from the question of whether some provincial newspapers in which the proportion of news and comment to advertising is small will automatically fall within the definition here. With all modesty, I suggest that had I been drafting this article instead of saying, "consisting substantially of news and comment", I would have said, "containing a substantial proportion of news and comment". I know that the phrase "a substantial proportion" is one about which lawyers could argue but there are precedents for holding that the word "substantial" means something which is other than nugatory, something which is other than minimal. I may be raising an unnecessary scare but it would have been better to draft the article in such a way to make it clear that even a periodical which consists largely of advertising but had some news or comment ought to be just as much under control as the larger more regular newspaper enterprises. I hope the Minister will take my remarks as being intended to be helpful.

As I recall, I raised in the House by way of oral question the attitude the Minister proposed to adopt at the time of the take-over of Sunday Newspapers Limited by the Independent Group. The Minister of State who has introduced this order was answering questions then and was extremely forthcoming in reply to supplementaries. The Minister made clear her concern at the state of affairs and indicated that the Government, and her Department, were investigating the situation and that action would be taken in the reasonably near future on it. I am sure that this order represents the action she was then contemplating and which the Department have thought appropriate. This is a very necessary and positive step because for too long our attitude, especially the attitude of our public institutions such as the Oireachtas, to what the Constitution describes as the citizens' rightful liberty of expression, has been a neutral one. We have been slow to take positive steps to encourage and facilitate that rightful liberty of expression. On some occasions we have been content to do nothing when we should have been taking action to protect that liberty when it was under threat.

I make that statement in the knowledge of the fact that there is always a certain gulf fixed between the Oireachtas, in particular, and the newspapers which, among other institutions, embody this rightful liberty of expression. One might best describe it as being a relationship of armed neutrality and, having straddled both sides of that fence, I suspect that that is probably the right kind of attitude for us to have between each other. At the same time I am sure that those who have the best interests of the newspaper industry at heart, and not just the best interests of that industry but the best interests of the people at heart, will welcome this as a positive step which has substantial good implications.

The situation with which it is dealing is fairly readily described as one in which there is an increasing concentration of newspaper ownership in this country. In The Irish Times of 18 January 1979 there is a report of a survey produced on behalf of the European Commission which stated:

Newspaper publishing in Ireland is highly concentrated in terms of ownership, . . . .

It goes on to say:

But the survey, carried out last year by a team of Irish consultants, says that while such an advanced degree of concentration would be seen as alarming in a large country like Britain or West Germany, it should not be so regarded in a small country like Ireland, or Denmark.

Indeed the report says that if population is taken into account, there is less concentration in the smaller countries. It points that the United Kingdom has a population 18 times that of Ireland, but has only six times as many morning newspapers, four times as many Sundays, 26 times as many evenings and 12 times as many weeklies.

The final paragraph says:

Newspaper publishing here, the report says, is dominated by the Independent Group, which has a 43% share of the morning paper market, a 42% share of the evening, and a 33% share of the Sunday market. The Independent and the Irish Press Ltd. together have well over 50% of the total newspaper market.

With all due respects to the authors of this report I cannot agree that the advanced degree of concentration which they discern in the Irish situation is not something that we should worry about on the basis of the fact that, comparatively speaking, we do rather better than the more densely populated countries. The important reality here is not the relative position of press ownership in Ireland compared to other countries but the absolute position within our own borders, and that absolute has been deteriorating steadily over the past few years. The take-over by Independent Newspapers of Sunday Newspapers Limited at a single stroke reduced the number of news sources here from six to five. These five sources are RTE, which is controlled, sometimes I think despite the best efforts of the Government by the RTE Authority under the framework of the Broadcasting Acts, the Independent Group of Newspapers, The Irish Press Group, The Irish Times and the Cork Examiner. We must not ignore the fact that the major group we are talking about here, the Irish Independent Group, quite apart from their holdings and their share of the national market, also have a large and increasing share of the provincial market. Their share of the provincial market is concentrated in turn along the densely populated east coast from Dundalk to Wicklow and Wexford. It is this combination of circumstances which creates the situation to which this order is addressing itself.

When one looks at the structure of these enterprises, it is very plain to see that the ultimate decisions about the world that will be supplied to the readers of these national and local newspapers can be made by a very small group of people. The Cork Examiner is controlled by one family: The Irish Press is controlled by a small group of shareholders, the Irish Independent Group is controlled by a small group of shareholders, and could quite conceivably be controlled by one individual, and The Irish Times Limited is controlled by a trust but like many enterprises of this kind is deeply indebted to banking institutions, and that also raises problems in connection with the independence and the ultimate survival of a free press here.

Apart from the concentration of ownership, there is another aspect of the problem which I should mention very briefly, that is, the constraints which tend to make newspapers as institutions more rather than less vulnerable to threats of merger or takeover and to the creation of monopolies. The National Prices Commission in their Monthly Report, July 1978, put the case for the special nature of newspapers very clearly. In paragraph 8.3 they said:

The newspaper industry is fairly unique in that it must operate, to be free, entirely in the open market, or rather, in two markets, for, the newspaper depends on advertising as much as on direct sales. It has collected its readership on the basis of its news service or its political line or its entertainment value and has then sold its audience onwards to a series of advertisers. . . . The newspaper had therefore become economically an extremely delicate and complex phenomenon; a thing dependent on the narrowest of margins, sensitive to the mildest winds of change; an economic downturn in a given society causes a drop in advertising and a newspaper is thrown into sudden loss,

That was a very sensible and straightforward statement of the situation as it affects newspapers. I believe that while this instrument we are debating here today should be welcomed, the Government should be looking in terms of a positive assistance to the industry in the name of facilitating and encouraging what the Constitution calls rightful liberty or expression.

In the issue of Forum published by the Council of Europe, No. 1-2/78 there is a very perceptive article on this theme by Claude Durieux, journalist with Le Monde who points out that in relation to France every year the Government give positive assistance to the press. He goes on to say:

This assistance takes various forms: preferential postal rates. . . . lower rates of VAT, tax exemption for up to 80% of the profits made by dailies in the form of investment allowances, subsidies to offset the rising costs of newsprint etc.

As a result of this policy about 10,000 publications out of a total of just under 15,000 qualify for positive Government help of one kind or another.

In Ireland the situation is almost the reverse. If one looks across the spectrum of different European countries, one will find that between one thing and another, there are 14 possible ways in which Governments can positively strengthen the newspaper industry in order to avoid a diminution in the outlets for news and creative expression. Of these 14 possible ways of providing positive help to newspapers, Ireland operates only one—training and research grants. The time has surely come in the name of freedom of expression which is built into our Constitution not just to take fire brigade actions as are envisaged in this order, helpful though they may be, but to think in terms of positive help for an industry whose not only survival but development is essential for our democracy.

It is important and it is serious that we should have only five national sources of news in this country. The Government as well as trying to ensure that these sources of news should not be further reduced, should be adopting positive policies to ensure that there are more sources of national news. The danger is that the trend is always towards monopolies. We have already heard rumours of the possible involvement of newspaper interest in local radio stations, for example. While appearing to add to the channels of information and communication to the public, this would only add further to the monopoly situation. This is not a matter which can be brought within the scope of this order because it refers specifically to newspapers. I would hope that if there is a development of local broadcasting the Minister would be very conscious of the danger of the extension of the monopolies.

I welcome the proposal. The Minister deserves to be congratulated for a response to a situation, even though unfortunately one national source of news has already been absorbed into another. I trust that the Minister and her successors will operate this order conscientiously in the best interest of the community and of freedom of expression.

I thank Deputies Kelly and Horgan for their warm welcome for the order and the motion before the House. I do not think there is any need to comment further on the importance of ensuring the greatest possible freedom in the expression of public views and opinions. It would be very undesirable if control of this matter were in the hands of an ever-decreasing number and that point has been reinforced by both Deputies who have spoken.

Deputy Kelly raised the criteria which apply. I would agree with him that criteria (a) and (i) could be taken as including the newspaper industry. He said that consumers may not be regarded as the recipients of information given the the newspaper industry. I would not entirely agree with that view. In the event of the examiner finding that the order cannot be properly applied by virtue of the criteria already given in the Mergers and Monopolies Act, an amendment will be introduced if necessary. The point was made that the scope of the order is too wide. It was the intention that the scope would be wide but it is envisaged that take-overs and monopolies in the industry may be desirable for various reasons and it is not intended to prohibit them. The main reason for making the order is to ensure that those which are not desirable should be fully examined and a decision made as a result of examination by the Minister or the examiner.

Deputy Kelly also made the point that subjecting to scrutiny a newspaper being acquired by a non-newspaper enterprise was wrong.

I meant it the other way around. I was referring to a newspaper which acquires a distribution agency, maybe outside the State.

Such an acquisition could be just as unacceptable as a merger between two newspapers or two people involved in the newspaper industry because we are dealing with the question of concentration of ownership. The matter could be just as troublesome where newspapers are owned by a non-newspaper person or another part of the newspaper sector.

Deputy Kelly made a very important point in connection with "throw-away" papers and we have them in the provinces as well as in Dublin. They can be a very important part of the life of the people living in urban areas. Most of these papers are delivered every week and we have no control over whether or not we receive them. We are concerned in this order to control newspapers mainly concerned with the dispersal of news. If a problem developed in relation to the type of newspaper Deputy Kelly mentioned, the matter would have to be examined and the necessary action taken.

I appreciate the genuine concern expressed by Deputy Horgan and I would agree with most of his remarks. Some of his latter points might be more appropriate to another time and another debate, but they are points which are continually being examined within the Department with a view to ensuring the dispersal of news to as wide a number of people as possible. I concur fully with Deputy Horgan's views in connection with the EEC survey and it was because of the very high level of concentration in the industry that this order was made.

I express my sincere thanks to both Deputies for the welcome they have given. All of us must be genuinely concerned to ensure that freedom of expression is given to all views and that as many people as possible are involved in the industry. We should not allow the industry to be caught in the hands of a small number of people.

When does the Minister intend to bring this motion to the Seanad?

This afternoon.

Question put and agreed to.
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