Ireland

[IE] New Law on Media Mergers

IRIS 2015-2:1/23

Ronan Ó Fathaigh

Institute for Information Law (IViR), University of Amsterdam

In 2008, a government-appointed advisory group published its 126-page report on media mergers, recommending a number of amendments to the law on media mergers contained in the Competition Act 2002 (see IRIS 2009-3/13). The Irish parliament enacted on the 28 July 2014 the Competition and Consumer Protection Act 2014, which entered into force on the 31 October 2014, amending the Competition Act 2002 and incorporating many of the media merger law reforms proposed by the advisory group.

The 2014 Act repeals the old section 23 of the 2002 Act, which regulated media mergers and replaces it with a more comprehensive 15-section provision, “Part 3A - Media Mergers”, containing detailed new rules on media mergers in Ireland. The most significant reform is that responsibility for approving media mergers has been transferred from the Minister for Jobs, Enterprise and Innovation to the Minister for Communications, Energy and Natural Resources.

Media mergers are defined under the new law as mergers or acquisitions where two or more of the undertakings involved “carry on a media business” in Ireland or where one carries on a media business in Ireland and the other carries on a media business elsewhere. Under the 2014 Act, all proposed media mergers must be notified to the communications minister. The minister must then apply a public interest test and determine whether the result of the media merger “is likely to be contrary to the public interest in protecting plurality of the media”.

In making this determination, the new law sets out a number of criteria the minister must consider, including the effect of the merger on “plurality of the media”, the “undesirability of allowing any one undertaking to hold significant interests across different sector of media business” and the adequacy of RTÉ and TG4 (the public service broadcasters) to protect media plurality. Importantly, the 2014 Act provides a comprehensive definition of “plurality of the media”, which includes both “diversity of ownership and diversity of content”. While the Act does not define what “significant interests” are, under section 28L, the minister may set out a definition in consultation with the Broadcasting Authority of Ireland.

The minister may then decide to either (a) approve the merger, (b) approve the merger, subject to commitments from the undertakings, or (c) consider that the merger “may” be contrary to the public interest and request that the Broadcasting Authority of Ireland carry out a “full media merger examination”. The new section 28E sets out the procedure for a full media merger examination, where the Authority will issue a report on the proposed merger. Additionally, the Act provides that an “advisory panel” of experts may be appointed by the minister, which may also issue an opinion on the proposed merger. The minister will then consider all the “relevant criteria”, including the Authority’s and/or advisory panel’s report and may decide to either (a) approve the merger, (b) not approve the merger, or (c) approve the merger subject to commitments from the undertakings. The minister may seek a high court injunction to enforce compliance with a determination. It is an offence to contravene a provision of the minister’s determination.