The Department for Culture, Media and Sport has published a consultation that responds to recent recommendations from Ofcom in relation to the operation of media ownership rules.

One of Ofcom’s recommendations related to the power under the Enterprise Act 2002 for the Secretary of State to intervene in mergers involving (1) UK daily, Sunday print, and local periodical newspapers and (2) broadcasters (defined as services which require a licence under the Broadcasting Act 1996) which raised so-called ‘public interest considerations’.

The public interest considerations that entitle the Secretary of State to intervene in a merger differ depending on the nature of the transaction. For transactions involving newspapers, such public interest considerations are (a) the need for accurate presentation of news; (b) the need for free expression of opinion; and (c) the need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in newspapers in each market for newspapers in the United Kingdom or a part of the United Kingdom. As for transactions involving broadcasters, the public interest considerations are: (a) the need for the availability throughout the UK of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and (b) the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003. Finally, in transactions involving broadcasters, or involving both broadcasters and newspapers, a further public consideration applies, namely the need, “in relation to every different audience in the UK, or in a particular area or locality of the UK, for there to be a sufficient plurality of persons with control of media enterprises serving that audience”.

Ofcom had advised that the Secretary of State should extend the application of these public interest considerations beyond print newspapers and broadcasters to what it termed “news creators”. Whilst it did not propose a definition of this term, it suggested that it should be sufficiently broad to capture:

• all entities that have editorial control over the creation and publishing of news material by journalists, irrespective of platform;
• online news providers, including online-only news providers, traditional sources that have withdrawn from print such as The Independent, and the online versions of existing print sources (such as the Guardian website); and
• wholesale news providers and magazines with a news or current affairs focus, whose activities also consisted in, or involved the creation of news.

According to Ofcom, these changes would bring the regime up to date and reflect the reality of how people access and consume news, although it did not recommend that intermediaries such as Facebook or X should fall within the scope of the regime.

Responding to these recommendations, the Government has said that “expanding the scope of the regime to capture any entity that creates news, as Ofcom has suggested, could potentially bring into scope a very large number of companies, posing a disproportionate burden on business, as well as on government and regulators, and may threaten the sustainability of an already struggling media landscape”.

However, the Secretary of State has confirmed that the Government agrees that the scope of the current regime should be extended so as to include mergers involving:

• companies that own online news publications which are connected with the UK (such as HuffPost or The Independent) or the online arms of print publications; and
• news publications circulated on a weekly or monthly basis (such as The Economist or Prospect).

According to the press release announcing a consultation on its proposals, the Government believes that these changes would “ensure a proportionate approach that reflects the way in which modern news is consumed, without putting undue pressure on businesses”. The Culture Secretary, Lisa Nandy, added, “since the media mergers regime came into force more than twenty years ago, our laws haven’t kept pace with technology and evolving news consumption habits. As people increasingly get their news online, we need a regime that is future-proof. That’s why I’m proposing further reforms to protect the availability of accurate, high-quality news from a variety of sources, ensuring media freedom continues to be upheld”.

The Government’s announcement states that, pending the response to the consultation, “the proposed changes to the Enterprise Act will be made via secondary legislation. The proposed inclusion of online news sites will apply both to the public interest media mergers regime and to the new foreign state influence regime. The powers would not apply retrospectively to historic transactions.”

The consultation is open until 18 December 2024, and can be found here