For all that, there continues to be little debate about the most difficult part of pluralism policy, which is to identify how much plurality is adequate or sufficient for democratic purposes. Judgements about the issue are acknowledged to involve discretion and subjective assessments, and the policy question typically transforms into one of deciding where the final decision should lie, whether with politicians or with regulators. It is now being recognised that further guidance is needed for effective and legitimate regulation of media pluralism, and a number of key elements have emerged as sufficiency factors which should be taken into account. Thus, in the UK, the communications regulator Ofcom has highlighted, and the House of Lords Select Committee on Communications (the ‘Communications Committee’) has endorsed, the significance of: the range of independent media voices, the reach and consumption of those sources, the absence of one them having too high a share of consumption, consumers’ use of multi-sourcing from a range of independent providers, and conditions of relatively free entry into media markets. But there continues to be reluctance to articulate criteria for determining the threshold requirements for sufficiency in each case.

This chapter provides an analysis that moves beyond the current intuitive approach to suggest that appropriate thresholds should be decided by reference to the underlying purpose of media plurality, which is to enhance democratic functioning. It discusses whether criteria can be devised which are workable, and considers whether they should be manifested in relatively rigid statutory limits or be left to some discretion, either of politicians or the regulator. A major consequence of thinking about sufficient plurality in this way is that, instead of treating diversity of media sources and platforms as proxies for citizens’ experience of diverse content, direct judgements of the plurality effects of media content will be required, and that has implications for practical regulation and for media freedom.

The European Commission duly announced a ‘three step plan’ for monitoring media pluralism. It entailed the publication of a Commission Working Paper on media pluralism (Commission of the European Communities, 2007) and the commissioning of an independent research study. Although it has not yet emerged, the outcome was envisaged to be the publication of a formal Communication on indicators of media pluralism. The research study produced the Media Pluralism Monitor, a tool for identifying various risks by reference to type (legal, socio-demographic, economic) and domain (including ownership and control, media genres, and political, cultural, and geographic aspects of pluralism) (Valcke et al., 2010). Although the Monitor seems rather complex to apply in practice, it was piloted in a sample of countries in 2014, including in the UK (Picard and Dzakula, 2014). But its real significance may be greater. Its presence in regulatory discussion has lent credibility to considering the suitability, for media pluralism policy, of a much wider range of variables, many with democratic foundations, compared to traditional concerns with corporate ownership structures and competition law.

More recently, there has been a positive shift in attitude in the European Commission, not only towards media pluralism but also towards media freedom more generally (Komorek, 2012; 2014). This was demonstrated by the appointment of a High Level Group on Media Freedom and Pluralism in 2011, together with the establishment of the Centre for Media Pluralism and Media Freedom (CMPF) at the European University Institute in Florence. The High Level Group’s report, (Commission of the European Communities, 2013) reasserted the importance of media pluralism policy, recommending that the EU should have a bigger role in supporting media freedom and pluralism in the EU and beyond. It offered detailed suggestions which included the need for media pluralism to be openly considered in regulation for relevant competition purposes, for threats to pluralism to be monitored more actively, for greater transparency to be required about the provenance of information in traditional and especially new media, and for the strengthening of protections for journalism.

At the same time, the CMPF reported on the EU’s competency to regulate media pluralism (Centre for Media Pluralism and Freedom, 2013). Emphasising the democratic values underpinning the EU, it also suggested that there was more scope for considering non-economic and cultural factors in implementing the Treaties, especially in relation to competition regulation. In the absence of a clear basis for intervention on internal market grounds, it recommended that the Treaties should be re-evaluated with a view to revising them to introduce specific principles on media freedom and pluralism. It may be doubted whether these ideas have much political traction in the EU, since the Council of Ministers has indicated that it favours only non-legislative measures in this field. But the interesting feature of the recent discussion has been the way that the democratic basis for media pluralism has been articulated so much more explicitly. This paves the way for a more focused analysis of a wider range of policy components that need to be incorporated into regulation.

This wider approach is also reflected in recent discussion of media pluralism in the UK, stimulated by renewed anxiety about the influence of News Corporation in key media sectors. The anxiety was prompted by two media merger cases, which had exposed inadequacies in the regulatory framework established by the Communications Act 2003; and by the Leveson Inquiry (Lord Justice Leveson, 2012), which had revealed serious failings in the company’s corporate and journalistic culture. In the BSkyB case (Court of Appeal, 2010), the News Corporation-controlled pay-TV company had acquired a 17.9 per cent interest in ITV, the main terrestrial commercial television company. That just avoided the 20 per cent ceiling imposed by one of the few remaining structural ownership rules (the ‘20/20 rule’, whereby a newspaper company with more than 20 per cent of national circulation is prohibited from having a 20 per cent interest or more in a Channel 3 licence). However, the then Competition Commission found against BSkyB on competition grounds, which the Court of Appeal upheld. But the case revealed some ambiguity in the drafting of the separate plurality provisions in the relevant legislation (s.58 of the Enterprise Act, 2002), a matter ultimately resolved by the Court’s holding that they were not confined to matters of external plurality, which is concerned with the number of persons with control of media enterprises, but could properly include consideration of internal plurality. This means that is it not merely a matter of counting heads but that, in determining whether there would be sufficient plurality following a merger, a qualitative assessment is required of the actual degree of control that one of the companies has over the policy and output of the other. Here, in making such an assessment, the Competition Commission had considered that BSkyB would not have been able to control ITV’s editorial policy. (It may be noted, however, that this is narrow usage; in wider policy discussion, ‘internal pluralism’ typically refers to more than control arrangements but to the substantive diversity of content offered within any particular media organisation).

The second case, in 2010, involved News Corporation’s proposal to increase its holding in BskyB to take full control. Under the legislation, the Secretary of State for Culture, Media & Sport (the Culture Secretary) intervened on public interest grounds, asking Ofcom to advise about, in the words of the statute, ‘the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience’. Making a ‘qualitative’ assessment, Ofcom concluded that the acquisition would be expected to operate against the public interest, ‘because there may not be a sufficient plurality of persons with control of media enterprises providing news and current affairs to UK wide cross-media audiences’ (Ofcom, 2010, para. 1.57). However, the Culture Secretary did not refer the matter to the Competition Commission as might have been anticipated, instead seeking to resolve it informally through undertakings, in a setting politically charged by the vigorous lobbying of interested parties. This underlined the importance of having clearly defined standards for pluralism, if only to defend decision makers against inappropriate pressure and influence. As it happened, News Corporation withdrew its proposal following the revelations about phone hacking at the News of the World, which was part of the News Corporation group.

Of particular interest for present purposes, however, is the element of Ofcom’s advice that went beyond the particular facts of the case. It noted that: