Ireland: Media Mergers in Ireland - 2010 Perspective

Last Updated: 10 January 2011
Article by Peppe Santoro

Background - Current Irish Regime

Media mergers in Ireland are subject to the normal clearance provisions under the Irish Competition Acts 2002 to 2010 save that all media mergers must be formally notified to the Competition Authority, regardless of turnover thresholds.

This means that all media mergers that meet the territoriality tests set out under Irish law must be notified and approved in Ireland. Failure to notify has significant consequences including invalidity of the underlying transaction and potentially significant fines (both at an individual and a corporate level).

Irish law defines a media merger as a merger or acquisition in which one or more of the undertakings involved carries on a media business (being the businesses of (i) publication of newspapers or periodicals consisting substantially of news and comment on current affairs, (ii) providing a providing a broadcasting service, or (iii) providing a broadcasting services platform).

In addition to scrutiny by the Competition Authority, Media mergers are considered by the Minister for Enterprise, Trade & Innovation (the "Minister") who must have regard to the following criteria (the "relevant criteria") in determining whether or not to allow a merger to proceed:

  • the strength and competitiveness of media businesses indigenous to the State,
  • the extent to which ownership or control of media businesses in the State is spread amongst individuals and other undertakings,
  • the extent to which ownership and control of particular types of media business in the State is spread amongst individuals and other undertakings,
  • the extent to which the diversity of views prevalent in Irish society is reflected through the activities of the various media businesses in the State, and
  • the share in the market in the State of one or more of the types of business activity falling within the definition of "media business" in this subsection that is held by any of the undertakings involved in the media merger concerned, or by any individual or other undertaking who or which has an interest in such an undertaking.

Advisory Group Report

In 2008, the Minister commissioned a report from a high level advisory group comprising experienced senior counsel and various industry figures (the "2008 Report"). The 2008 Report's findings were as follows:

  • There should be a statutory definition of media plurality (referring both to ownership and content);
  • The Competition Acts should be amended to incorporate a statutory test to be applied by the Minister in the discharge of his or her function in relation to media mergers;
  • The current definition of the 'relevant criteria' in Section 23(10) of the Competition Act should be replaced;
  • There should be an on-going collection and periodic publication of information in relation to media plurality in the State;
  • The Competition Authority should not be required to form or furnish to the Minister an opinion on the application of the 'relevant criteria';
  • There should be a separate system of notification of media mergers to the Minister for clearance;
  • There should be an obligation imposed by Statute on parties to a media merger to provide full information to the Minister on all circumstances that might impair media plurality in the State and to notify any changes in information provided to the Minister, with appropriate penalties for non-compliance;
  • The Minister should publish guidelines to assist undertakings involved in media mergers in knowing how the Minister would in general apply the relevant criteria;
  • In the event of the Minister deciding to proceed to a detailed investigation of a proposed merger (other than a broadcaster to broadcaster merger), a three to five person Consultative Panel should be established on a statutory basis to provide advice to the Minister on the media merger;
  • The definition of "media business" should be amended to include publication of newspapers and periodicals over the Internet and broadcast of certain audiovisual material over the Internet; and
  • The important role of the media in a democracy should be recognised by law.

Although the Minister, at the time of the 2008 Report, indicated that legislation would be forthcoming in 2009 to act on its recommendations, no such legislation has yet been formulated.

Media Mergers 2008 – 2010

The 2008 Report summarised (at Appendix E) the details of all media mergers notified to the Competition Authority in the 2003 – 2007 period. Since 2007 to date there have been a further 16 media mergers notified to the Irish Competition Authority as follows: 

Notification No. – Parties

Economic Sector

Date Notified

Status

Business Activities

M/08/003 – Independent News & Media Holdings (Ireland) Limited/Champion Printing Limited

Newspaper publishing and printing

12/02/08

Cleared (P1) 10/03/08

The principle activity of INM Holdings and of Champion Printing Limited is the publishing of newspapers.

M/08/007 - The Irish Times Limited and Relevance Publishing Limited

Newspaper publishing and advertising.

05/03/08

Cleared (P1) 25/03/08

The principle activity of The Irish Times Limited and of Relevance Publishing Limited is the publishing of newspapers.

M/08/021 - TV3 Television Network Limited and Kish Media Limited

Production of television programs and television broadcasting.  

25/07/08

Cleared (P1) 15/08/08

The main business of Televison Network Limited and Kish Media Limited is television broadcasting .

M/08/023 - Doughty Hanson & Co. Limited and Middenberm Part Co. B.V. re TMF Group HoldCo B.V.

Outsourcing Services  

31/07/08

Cleared (P1) 15/08/08

The main business of Doughty Hanson & Co. Limited and Middenberm is investment and the main business of TMF is the supply of administrative outsourcing services

M/08/024 – General Electrical Company and Carnival Film and Television Limited

Drama programming

20/08/08

Cleared (P1) 25/03/08

GE is a global technology and services company incorporated in New York, USA. Carnival is a UK based independent drama producer for television in the UK.

M/08/038 – Alpha Publications Limited and The Herald Printing and Publishing Company Limited

The Regional Newspaper Publishing Sector  

23/12/08

Cleared (P1) 22/01/09

APL supplies weekly regional newspapers in Northern Ireland and the Midlands. APL sells advertising space in its newspapers. HPPC publishes the Tuam Herald and sells advertising space in the Tuam Herald.

M/09/003 – Communicorp Group Limited and Boxer TV-Access AB

Pay-TV and related services sector

16/01/09

Cleared (P1) 13/02/09

Communicorp has radio interests in Ireland and Eastern Europe. Boxer TV is DTT multiplex operator in Sweden.

M/09/013 - The Irish Times Limited, DMG Ireland Holdings Limited, Independent Newspapers (Ireland) Limited AND Fortunegreen Limited

Newspaper publishing and advertising

17/07/09

Cleared (P2)

06/11/09

The principle activity of The Irish Times Limited, DMG, INM and Fortunegreen is newspaper publishing.

M/10/007 - Trinity Mirror PLC and Guardian Media Group

Newspaper publishing and the operation of digital sites associated with their newspaper titles.

05/03/10

Cleared (P1) 26/03/10

The principle activity of Trinity Mirror and Guardian Media Group is newspaper publishing

M/10/008 – Lebedev Holdings Limited and Independent News and Media Limited

Newspaper publishing 

25/03/10

Cleared (P1) 09/04/10

Lebedev is a holding company only and INM is primarily a newspaper publisher.

M/10/009 – UPC Communications Ireland Limited and Broadworks Communications Limited

Retail multi-channel pay TV market. Broadband market. 

06/04/10

Cleared (P1) 21/04/10

UPC provides telecommunications services TV services other telephony services. Broadworks provides TV services and broadband services.

M/10/012 – MLM Management Limited and Gaiety Investments and Setanta Sports

Television broadcasting 

05/05/10

Cleared (P1) 20/05/10

MLM is an acquisition vehicle. Gaiety's main activites are the promotion of live music and other events. Setanta is a television broadcaster.

M/10/017 – Metropolis International Group Ltd and Medical Publications (Ireland) Limited

The print media sector

28/05/10

Cleared (P1) 16/06/10

Metropolis specialises in publishing consumer, business and travel publications. Medical Publications publishes publications containing news and information for Irish doctors and other healthcare professionals.

M/10/020 – British Sky Broadcasting Limited and Virgin Media Television

The broadcasting of television channels and the sale of television advertising airtime. 

04/06/10

Cleared (P1) 29/06/10

The principal business of Sky is television broadcasting. Virgin is an entertainment and communications provider.

M/10/027 – Northern & Shell Broadcasting Limited and CLT - UFA Holdings Limited

 

Television Broadcasting 

20/08/10

Cleared (P1) 10/09/10

N & S Group: is principally engaged in newspaper and magazine publishing and television broadcasting. CLT operate a national terrestrial analogue television channel.

M/10/030 – Tontine Rooms Holding Company Limited (Alpha Group) and Newry Democrat

Local Newspaper publishing sector

06/09/10

Still ongoing (Phase 1 Submissions)

Tontine is principally engaged in newspaper and magazine publishing. Newry Democrat is a newspaper publisher.

Where does this Leave Media Companies with Irish Operations?

With the Government fully engaged managing the country's economic affairs and addressing the significant levels of unemployment in the economy, it is unlikely that legislation to implement the 2008 Report's recommendations will be brought forward in the near term.

The Minister could, if so minded, effectively implement a number of the recommendations from the 2008 Report without additional legislation but it is likely to take a significant transaction to test the appetite of the Minister to act on the 2008 Report's recommendations in advance of the implementation of specific legislation.

While the media merger notifications that have been made to the Competition Authority since the 2008 Report have generally been uncontroversial, it remains to be seen if a significant shift in the Irish media sector might trigger a re-evaluation of the 2008 Report's recommendations.

We recommend that parties to significant media mergers with an Irish dimension should engage early in the process and ascertain the stance that the Minister is likely to take in relation to any necessary notification.

Relevant Links:

Disclaimer

This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Eversheds O'Donnell Sweeney for any action taken in reliance on the information contained herein. Any and all information is subject to change. Eversheds O'Donnell Sweeney is not responsible for the contents of any other website or third party material which can be accessed through this website.

Eversheds O'Donnell Sweeney is an Irish partnership and a member firm of the Eversheds International network of firms affiliated with Eversheds International Limited, an English company limited by guarantee. Member firms of Eversheds International are independent firms and members of Eversheds International Limited, but have no authority to obligate or bind Eversheds International Limited or one another vis-à-vis third parties. Neither Eversheds International Limited nor any of its member firms have any liability for each other's acts or omissions.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions