Updated: 1 November 2017

Article 11(2) of the Charter of Fundamental Rights of the European Union (pdf) provides that

The freedom and pluralism of the media shall be respected.

As a consequence, as part of its implementation of the Digital Single Market, the European Commission defends Media Freedom and Pluralism in a variety of ways. For example, the Media Pluralism Monitor is designed to identify potential risks to media pluralism in Member States. It is based in the Centre for Media Pluralism and Media Freedom in the Robert Schumann Centre for Advanced Studies at the European University Institute, Florence. The pilot programme was established in 2009. The monitor has been implemented twice, first in 2014 on 9 EU countries, and second in 2015 on the remaining 19 EU countries. [Update: In 2016, the CMPF implemented the monitor in all 28 EU Member States and in two candidates countries (Montenegro and Turkey).] Ireland was included in the 2015 monitor, in a chapter written by Dr Roderick Flynn of DCU.

The monitor assesses four key areas of media pluralism. The first relates to Basic Protection, which concerns

regulatory safeguards for freedom of expression and the right to information; the status of journalists, and the independence and effectiveness of the national regulatory bodies. The risks detected in this area are limited. But given that this area represents the regulatory backbone of the media sector in every contemporary democracy, even an average risk of 23% represents a threat to media pluralism.

In the 2105 Report, Flynn assessed Ireland as at 29% risk under this head. He said that this risk comes mainly from the the provisions of the Defamation Act, 2009 (also here), which permits bodies corporate to take libel actions and includes blasphemy as an offence. He also said that crime journalists, in particular, report serious threats to their physical safety, and that there is “some evidence that the state may have used” the Communications (Retention of Data) Act 2011 (also here) “for the surveillance of journalists”. This last point has been denied by the Minister for Justice, and a review of some aspects of the issue is now under way. But the biggest impact is likely to be when the constitutionality of the Act is considered, either when Digital Rights Ireland‘s challenge to that Act returns to the Irish Courts after they persuaded the CJEU to strike down the Directive on which the Act is based (a similar case is currently before the CJEU), or in another challenge, if it gets heard first.

[Update: In the 2016 Report, Flynn assessed Ireland as at 26% risk under this head. Since then, the Department of Justice has announced a review of the operation of the Defamation Act, 2009; the same Department published Mr Justice Murray’s Review of the Law on the Retention of and Access to Communications Data (pdf) and an accompanying General Scheme for a Communications (Retention of Data) Bill 2017 (pdf); the CJEU delivered judgment in Case C-203/15 Tele2/Watson; and the DRI case continues in the Irish Courts (see [2017] IEHC 307 (19 July 2017)).]

The second area assessed by the monitor relates to Market Plurality. Here, the monitor concludes that

most countries are at medium risk. This area deals mainly with media ownership, an economic component that is widely considered essential in the assessment of a level of media pluralism in any given context.

In the 2015 Report, Flynn assessed Ireland as at 54% risk under this head, and this has garnered some concerned media attention (Irish Examiner (Dr Flynn); Irish Times (Michael O’Regan); Irish Times (Colum Kenny)). The highest risk under this head, according to Flynn, relates to the concentration of media ownership. Irish law imposes no maximum media ownership thresholds or cross-ownership thresholds, and there is a lack of reliable data as to market share by revenue in Ireland. Moreover,

… businessman Denis O’Brien owns 29.9% of Independent News and Media shares (the largest print media group in Ireland), and he is Chairman and principal shareholder of Communicorp, which accounts for 20% of the radio market in Ireland. However, this is countered by the dominant position of the PSM [public service media broadcaster], RTE, in both the television and radio markets.

Flynn therefore recommended that, since the existing levels of media concentration, especially with regard to print and broadcast media, already exceed the maximum recommended levels (20% market share) as described in the Competition and Consumer Protection Act 2014 (also here), that legislation should be amended to apply retrospectively. This is an intriguing solution, but there could be constitutional problems with it, as it would have an impact on the property rights of the media owners. However, we have recently been warned in no uncertain terms not to over-state the impact of such arguments.

[Update: In the 2016 Report, Flynn assessed Ireland as at 47% risk under this head. Another Report raised “grave concerns about the high concentration of media ownership in the Irish market”, and a Private Members’ Bill, the Media Ownership Bill 2017, proposed to permit the Minister for Communications, Energy and Natural Resources to take “retroactive measures” to reduce “significant interests” held by “any one relevant media asset”.]

The third area assessed by the monitor relates to Social Inclusiveness, which

evaluates access to airtime and media platforms for different cultural and social groups, for local/regional communities, and for people with disabilities, and examines the level of media literacy for the population as a whole.

In the 2105 Report, Flynn assessed Ireland as at 41% risk under this head. Apart from Irish-speakers served by Irish-language radio and television, Flynn concluded that there is little access to media for different social and cultural groups, and for local communities, and that there is insufficient access to media platforms for community media. He therefore recommended that, notwithstanding cost, more active state intervention is necessary to create spaces for a minority presence in Irish media. This may not be necessary, if the commitments to diversity and plurality in the Broadcasting Authority of Ireland’s Strategy Statement 2014-2016 (pdf) bear fruit. [Update: In the 2016 Report, Flynn assessed Ireland as at 51% risk under this head.]

The fourth area assessed by the monitor relates to Political Independence of the media. This area

… evaluates the politicisation of the media considering public service media, commercial media outlets, media distribution networks, and news agencies.

In the 2105 Report, Flynn assessed Ireland as at 40% risk under this head. Whilst he perceived little risk to the independence of the governance and funding of the PSM [public service media broadcaster], and equally little risk of political bias in the media or of politicisation of control over media distribution networks, Flynn considered that a medium risk attends the absence of legal prohibitions on media ownership by political parties, and the absence of a publicly-accessible database of media ownership in Ireland. He was equally concerned about the absence of easily accessible guidelines governing the allocation of state advertising to media outlets. He therefore recommended the publication of such guidelines on the website of the Government Procurement Agency. Moreover, he also recommended that government departments should annually publish a list of total advertising spending, broken down by medium and by media outlet. Finally, he argued that it would require only “a minimal change” to the Competition and Consumer Protection Act 2014 to prohibit the political ownership of media outlets. I think that this is more than a little optimistic. It may take only one section to achieve this end, but it would be exceedingly tricky to draft that section. [Update: In the 2016 Report, Flynn assessed Ireland as at 39% risk under this head.

The Constitutional considerations will have to include Article 40.6.1(i) of Bunreacht na hÉireann, the Irish Constitution. By the first sentence of that provision, the State guarantees liberty for the exercise of “the right of the citizens to express freely their convictions and opinions”. The second sentence of that provision provides

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.]

Art 11(2) CFR EU (above) may give some positive content to that difficult sentence. Whilst that provision is ultimately about ensuring that the “organs of public opinion” are not used “to undermine public order or morality or the authority of the state”, it does speak positively about the “rightful liberty of expression” of such organs; and the CFR obligation to respect “the freedom and pluralism of the media” could give content to that “rightful liberty of expression”.