Invitation for representations relating to the proposed merger between 21st Century Fox, Inc. and Sky plc

On 16 March the Secretary of State announced that she had intervened in the merger in relation to two public interest grounds; plurality of media ownership and commitment to broadcasting standards. This triggered an action for Ofcom to report to the Secretary of State on the media public interest grounds specified, and for the Competition and Markets Authority (CMA) to report on jurisdiction. These reports were submitted to the Secretary of State on 20 June.

Ofcom, in preparing its report, invited comment on the two public interest grounds. This took place between 16 - 30 March and a summary of the responses received was included in its report to the Secretary of State. A link to Ofcom’s invitation to comment can be found here

On 29 June the Secretary of State set out her minded to decision on whether or not to refer the Sky / Fox merger for a fuller, Phase 2 investigation by the Competition and Markets Authority. A copy of this statement can be found following this link

In relation to plurality of media ownership, as guided by the report from Ofcom, the Secretary of State indicated that she is minded-to refer for a fuller investigation and has invited further representations from the parties to the merger.

On the question of genuine commitment to broadcasting standards, and again as guided by the recommendation set out in Ofcom’s report, the Secretary of State has indicated that she is minded-not-to refer to a Phase 2 investigation.

This invitation for representations seeks views in relation to the Secretary of State’s minded-to decision not to refer on the grounds of genuine commitment to broadcasting standards.

We would welcome new or substantive evidence on the question of commitment to broadcasting standards and on Ofcom’s assessment of these matters.

The deadline for responses is 17:00 on Friday 14 July and responses can be made by following this link

The intention behind this consideration is whether a person carrying on or in control of a media enterprise post-merger is able demonstrate a genuine commitment to the content standards objectives that apply to all UK broadcasters.

In other words are they likely to comply with the spirit as well as the letter of the broadcasting standards set down in the Communications Act 2003. These standards are set out in Ofcom’s invitation to comment document and are as follows:

The objectives set out in section 319 of the Communications Act 2003 are:

(a) that persons under the age of eighteen are protected;

(b) that material likely to encourage or to incite the commission of crime or to lead to disorder is not included in television and radio services;

(c) that news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with;

(d) that news included in television and radio services is reported with due accuracy;

(e) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;

(f) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material;

(fa) that the product placement requirements referred to in section 321(3A) are met in relation to programmes included in a television programme service (other than advertisements);

(g) that advertising that contravenes the prohibition on political advertising set out in section 321(2) is not included in television or radio services;

(h) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;

(i) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with;

(j) that the unsuitable sponsorship of programmes included in television and radio services is prevented;

(k) that there is no undue discrimination between advertisers who seek to have advertisements included in television and radio services; and

(l) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred.

The commitment to broadcasting standards considerations is important for media plurality and this recognises the importance all broadcasters embedding these requirements in their corporate policies and editorial codes.