Opening the gates: Plurality regulation and the public interest

Abstract

This article sets out the emergent challenges and opportunities for developing effective and ‘future proof’ policy for regulating media plurality. This analysis is carried out against the backdrop of UK authorities’ 2018 public interest test of the proposed merger between 21st Century Fox and Sky, and the latest data on the UK media ownership landscape. That merger review established important precedents for plurality reform, particularly in its acknowledgement that digital intermediaries are not an inherently pluralizing force and that regulatory intervention is needed to prevent concentrations of agenda power, especially at the level of wholesale newsgathering. The article goes on to critically examine the existing regulatory approach to considerations of whether media mergers are in the public interest, especially in the light of mounting evidence of intensifying consolidation within and across news platforms. This article argues that effective plurality reform must start with new legislation that sets out indicative thresholds and detailed guidance on the meaning of plurality sufficiency. This will enable a proper assessment of plurality outside merger activity and could serve as the basis for periodic reviews, enabling regulators to respond effectively to the challenge of new technologies and dynamic market conditions. We also address problems in the plurality measurement framework developed by Ofcom, namely, the inclusion of digital intermediaries as news ‘sources’ in data collection and analysis. In light of findings from the Fox/Sky merger review, a more effective approach would be to reallocate consumption attributed to major intermediaries based on analysis of the actual news sources consumed via those platforms. Far from privileging intermediaries, this approach will provide a more robust basis on which to bring them into the fold of plurality regulation, namely, through the development of plurality standards for algorithm governance. Such an approach also reflects a new reality in which the interplay of gatekeeping and agenda power between traditional media and intermediaries is not a zero-sum game, amidst growing evidence that major intermediaries are serving to consolidate rather than diversify the news offer in favour of incumbent and mostly legacy publishers.