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    Monday, 29 October 2007

    Missing the big picture?: the misdirection of the AVMS

    Russ at OfcomWatch has highlighted an interesting article in The Times that passed me by last week. The piece is focused on the new Audio-Visual Media Services Directive (AVMS - the latest revision to the Television Without Frontiers Directive - the common position on which, incidentally, the EC Commission concurred with a couple of weeks ago). In short, it queries the rationale for content regulation in the digital age and suggests that a preferable approach would be to 'equalise down' approaches to linear (traditional pushed tv) and non-linear (ostensibly Internet tv delivered on demand) rather than extending the regulatory purview to new media.

    The piece is more eloquent than allowed above. The author, Graham Smith of law firm Bird and Bird (they of the cleverly simple - or simply clever - homepage address, asks rhetorically: "does internet video herald the death of broadcast content regulation as an increasingly irrelevant anachronism?".

    Smith does not remain neutral on the question for long: "broadcast content regulation is an anomalous relic of the old days of spectrum scarcity. If convergence is thought to demand platform neutrality in content regulation, it does not automatically follow that it should be achieved by extending the remit of Ofcom. On the contrary, it can be achieved by rolling back broadcast regulation and subjecting the freed-up content only to the general law. If that is not palatable, the answer is not to extend broadcast regulation into areas in which it has no business. It is to refrain from seeking full platform neutrality in content regulation". Support is drawn from the most important, and least commented, pearl of wisdom in Tony Blair's feral beast speech regarding the unsustainability of divergent approaches to media regulation as determined by (converged) technology.

    For his part, Russ offers the additional thought that the impact of the new regulation will be minimal, in particular due to the jurisdictional opportnities open to web-based publishers.

    Inch by inch...: BSkyB offer voting remedy on ITV merger

    It has been reported over the weekend that BSkyB has offered to forego the full voting rights attendant on the 17.9% share in ITV that it has acquired (1). The Competition Commission has previously suggested that some remedy must be found to offset the impact on competition that it has perceived. The proposal was contained in a letter dated 12 October. A remedies hearing was scheduled to take place last week.

    BSkyB is keen to ensure that there is no presumption in favour of any of the possible remedies mooted in the provisional report. It is proposing to dispose of such measure of voting rights that is currently deemed to facilitate its influence by placing them in a voting trust with a respected institutional trustee. The company calculates that on the Commission's figures this could be achieved by alienating as little as 2.3% of the shares, and has generously proposed to nominate 3% (leaving 14.9% under its control, which it considers to be clearly insufficient to allow material influence). This is attractive because, as a structural solution, it would require no monitoring by the OFT.

    Clearly, this simple voting remedy is designed specifically to remove the only basis for a finding of material influence, viz by dint of the purported ability to block special shareholders' resolutions (which requires 25% of voting shares). It is a clever, and difficult to gainsay, strategy. The company has realised that on the Commission's own figures even a relatively small reduction in its voting power would allow the ITV board to proceed irrespective of BSkyB opposition. Minded of the Commission's obligation to act proportionately, it is offering a quick fix. To my mind, the Commission would have to rejigg its complaint if it is to reject such a proposal. It will be interesting to see the response.

    Predictably, not everyone agrees: Virgin Media are still advocating (baldly) a complete sell-off.

    In addition to its proposal which is without prejudice, BSkyB has also promised further evidence to contest the Commission's preliminary findings both that a relevant merger situation has been created, and that such a situation will lead to competition problems on the all-TV market.

    A non-confidential version of BSkyB's letter, along with the responses received by the Commission from other interested parties, are available on the inquiry webpage.

    Beware rhetoricians!: the sense of nonsense

    There was a nice piece by Zoe Williams in the Guardian on Friday that focused on the 'opinionator' Melanie Phillips. Quite apart from what might be considered a pleasant tone of derision for an arch anti-liberal commentator, the article offers the sensible reminder to take the messages offered with a pinch of salt. The alleged purpose of such commentators' bombast, far from contributing to a search for truth, is rhetorically to undermine any mutual commitment to finding understanding in favour of encouraging retrenchment to preconceived 'positions'.

    The ease of resort to, and difficulty of identifying the use of, such techniques by systemic and other actors is often cited as a weakpoint in Habermasian notions of communicative rationality and its relevance to working understandings of the public sphere. He is often considered 'hostile to theatre' (spectacle or rhetoric as communicative devices) and therefore somewhat divorced from reality. A better reading, however, is that his work invites a focus - in a manner not dissimilar to that of Foucault - on precisely such attempts to distort public discussion that is notionally oriented towards reaching consensus / sense.

    Wednesday, 24 October 2007

    The future of the BBC: a selection of commentary

    There has been much rumination on the future shape of the BBC in the wake of the recent announcement by the Director General Mark Thompson of proposed funding cutbacks in response to the lower than hoped-for licence fee settlement. The main strapline has been fewer programmes better programmes. Newsgathering and factual programmes have borne the brunt of the proposed cuts, although for many commentators this movement amounts only to an overdue push towards the sort of efficiency that is standard among commercial broadcasters. Needless to say, many of those working at the BBC are feeling less than secure.

    These events have brought to the fore the question of what the BBC 'is for' today and 'will be for' in the coming decades. More broadly, what is the role of public service broadcasting in the digital age? An adjunct to this debate is the question of whether the current management team have the vision to pilot the enormous organisation along a preferred course.

    What follows is a selection of the wide commentary on these themes:
    The BBC pays the price of doing too much (Philip Stevens) - BBC sums don’t add up (Charlie Beckett) - The BBC empire has grown too big (Simon Jenkins) - Too much management at the BBC (Jeff Randall) - Cuts, confusion and the Corporation (Guardian leader) - Not so much anger as grumpiness and guilty relief (Mark Lawson) - Helen Boaden: The good news or the bad news? (Ian Burrell) - The Big Question: Why is the BBC cutting jobs, and how will the upheaval affect its output? (Andy McSmith) - Is there a vision? (Owen Gibson and Maggie Brown) - Analysis (Steve Hewlett)

    Ed Richards, the CEO of Ofcom, can be heard in conversation with Damian Tambini on 'The Future of Broadcasting – Public Service in a Digital Age' at the LSE on 21 November.

    Tuesday, 23 October 2007

    Journalism - the 'surest way to anarchy': Irish court orders source disclosure

    Having resisted the temptation to highlight the relative standing of Ireland on the index of press freedom noted earlier today (8th by the way), I feel bound to herald that country's imminent demotion nonetheless. Two senior journalists on the Irish Times have been ordered by the High Court to give evidence as to the identity of their source for an article on the finances of Taoiseach Bertie Ahern (1,2,3). They face possible contempt of court charges should they fail to do so.

    The developments relate to the publication of an article in September of last year which was based in part on a letter sent by the Mahon Tribunal - a body established to probe suggestions of planning corruption, in particular involving the Taoiseach - to a benefactor of Bertie Ahern. The Tribunal is keen to learn of the source of the leaks by which it has been bedevilled; the journalists have refused to answer questions and moreover have destroyed relevant documents. This course of action was today labelled by the court as "anathema to the rule of law and an affront to democratic order". It proceeded: "if tolerated [such behaviour] is the surest way to anarchy". While such comments are clearly overblown, there is of course an imperative to protect the confidentiality of the legal process which the three-man judicial panel was not slow to recognise.

    So far the journalists have remained implacable. There has already been mention of a prospective appeal to the Supreme Court on the basis that the High Court has significantly underplayed the important of the journalist's right to protect sources and the public interest in receipt of the newspaper article.

    This is not the first occasion on which the progress of the Tribunal has resulted in freedom of expression concerns.

    UK ranks only 24th on Press Freedom Index

    The NGO Reporters Without Borders have published their annual ranking of the performance of countries on questions of Press freedom (1,2). The UK has improved slightly to 24th. Of 169 countries, Iceland and Norway are placed joint first, while Eritrea, North Korea and Turkmenistan prop up the table. Other notable placings are the USA (48th) and Russia (144th).

    The ranking is hardly scientific, but rests upon answers to a survey received from 15 freedom of expression organisations throughout the world, its network of 130 correspondents, and journalists, researchers, jurists and human rights activists. The survey contained a set of 50 questions on press freedom in their countries.

    Is that the fat lady singing?: Burstein loses out in the House of Lords

    The second defamation story from the last week concerns the rejection by the House of Lords of an attempt to appeal focused on the defence of fair comment on a matter of public interest. Composer Keith Burstein took action against the Evening Standard on account of its criticism of his opera, Manifest Destiny. Earlier this year, the Court of Appeal found that the newspaper could rely on the defence. The House of Lords considered, however, that the case "does not raise an arguable point of law of general public importance which ought to be considered by the House".

    Having failed to persuade the House of Lords of the need to consider his arguments, Burstein is apparently now hoping to present his case before the European Court of Human Rights alleging that the refusal to permit him to put his case before a jury amounts to a denial of justice (1).

    Now you see me...: court orders disclosure of Internet posters' identities

    The last few weeks have seen the culmination of a number of interesting libel actions. Last week, a number of cases focused on defamatory statements by anonymous posters on internet chatrooms (1). The cases are an interesting set as they range across scenarios in which first the host was identifiable and implicated in the errant behaviour, in which the host was identifable but not implicated, and in which the host was difficult to identify (and turned out also to be responsible for the posting).

    Two of these cases involved criticism and insult by fans of Sheffield Wednesday of the club's executive and its chairman in particular. The first saw the BBC being obliged by the High Court to hand over the names of two posters. It had taken a neutral stance on the actions, but had withdrawn the impugned postings when notified by the complainants of the questionable legality of the messages.

    The second case concerned a club fan-site, Owlstalk (Sheffield Wednesday Football Club Ltd & Ors v Hargreaves (2007) EWHC 2375 (QB) - available on Casetrack and BAILII). The names of 14 posters were sought, although the judge Richard Parkes QC allowed only 5. He considered it necessary to distinguish between statements which "though legally defamatory, were so obviously designed merely to insult as not to carry a realistic risk of doing the claimant quantifiable harm" (para 12), and other more serious defamation. That is, actions must respond to statements that involve "more than a trivial attack which would not be taken seriously".

    While it seems that the BBC has avoided any potential liability on account of its neutrality and compliance, Hargreaves may face further action himself as a publisher, as it is alleged that he "permitted some users to pursue a sustained campaign of vilification... in the course of which [they] posted false and defamatory messages on the website... therefore [he] has facilitated and become mixed up in the wrongdoing of these users" (para3).

    The actions were taken in under the Norwich Pharmacal precedent. As explained by Media Lawyer (subs.), this allows litigants to seek disclosures if they can demonstrate to the court that an arguable wrong has been committed, that they need the information to protect their position, and that the party being asked to supply the information is involved in the matter, even if only innocently.

    The final, quite bizarre, case involved a website hosted in the US (, on which a series of defamatory messages - alleging, inter alia, drug-dealing, paedophilia, sexual assault, infidelity and corruption - were posted regarding a Sunderland housing organisation and its employees (Gentoo) (1,2,3). Some of these accusations were then repeated in leaflets published in the North-East. The action ended prematurely after a rival businessman admitted in court last week that he had been behind the website and the messages. The complainants' solicitors had spent £300k on tracing the source of the postings. The action had been brought on the basis of the Protection from Harassment Act 1997 and the Data Protection Act 1998.

    Monday, 22 October 2007

    The civilising force of publicity: televising the courts, coroners and councils

    Today a number of issues revolving around citizen access to public events have come to the fore(and not just the statistic that over 15m watched the English rugby team's long overdue (!) demise at the weekend). First, in conjunction with the local Evening Post, Bristol City Council has agreed to the webcasting of many of its meetings. Reportedly, the first such webcast secured an audience of more than 200 viewers (1 - those interested, and with time on their hands, can catch further installments on the newspaper's webpage, or perhaps they might review the Ofcom uploads on YouTube the most recent of which involves a discussion of the paper on the future of children's programming).

    Such 'attendance' figures far outstrip the paltry numbers in the public gallery at the Diana and Dodi inquest, where - notwithstanding the fairly compliant media coverage - few punters have been enticed through the doors (1). Perhaps, the media are sating appetites, or perhaps its the online updates from the dedicated webpage that are satisfying the ghoulish.

    Most importantly, though, it has been mooted that sittings of the new Supreme Court may be broadcast (1). Justice Secretary Jack Straw is said to favour such a momentous move, although he is opposed to any reemergence of the Victorian 'justice as entertainment' spectacle that might accompany televising of jury trials. A successful pilot project conducted recently involved the recording without broadcast of a number of cases in the Court of Appeal. Moreover, the conclusions of the Appellate Committee of the House of Lords - in terms of the bare result of appeals - are already broadcast as part of the proceedings of Parliament. The Supreme Court is scheduled to come into being in October 2009.

    John Battle, Head of Compliance at ITN, will speak at LSE on the theme 'Publicity is the very soul of justice': the courts, the media and open justice in 21st Century Britain' on 28 November.

    Dangerous liaisons?: two dalliances between government and media

    Two noteworthy instances of supposed government cooption of broadsheet journalists in recent days. First, the Independent was caught on adopting more than the gist of a government press notice on the EU Reform Treaty on its Thursday front page '10 myths about the EU treaty' (on which, hear Damian Chalmers and others at the LSE on this Thursday). It has since come out fighting.

    Secondly, a soon to be published narrative on the failings of the UK media to challenge received wisdoms on global problems is to highlight the role of a former Observer political editor in the preparation of the 'dodgy dossier' that formed part of the Government's strategy to justify the moves towards war in Iraq (1,2). This purported role has been denied by the journalist in question.

    Tuesday, 16 October 2007

    First rate intelligence?: Nestle lauches new 'educational' marketing strategy

    F Scott Fitzgerald's famous epigram - 'the test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function' - was brought back to my mind recently. Of course, this is not at all what Nestle are aiming at.

    The public interest?: whistle for it...

    A story I missed last week concerned the charging of a Foreign Office official for alleged breach of the Official Secrets Act. Derek Pasquill is said to have passed information to the New Statesman, the Observer and the Policy Exchange think tank, where it was deployed liberally by journalist Martin Bright. The New Stateman has gone to town (to listen to the article, try here), charging the Government with deliberately using tactics designed 'to intimidate anyone in the civil service who has reservations about dangerous policy, and who might be minded to expose it in the public interest'. They consider the prosecution to be 'an abuse of state power, designed merely to spare the embarrassment of ministers' and identify 'malice and hypocrisy at the heart of Whitehall's approach to whistleblowers'. For reasons stated, its difficult to disagree [the nice jpg is lifted from the New Stateman editorial].

    Monday, 15 October 2007

    Child's play: clever tutorial on US copyright law

    I came across this video on YouTube in an idle moment - grates a bit, but gets the message across...

    Tuesday, 9 October 2007

    'What you see is what I get': fair dealing and photographs

    Charles Swan, of niche media firm Swan Turton, has published an interesting note on the copyright protection available to news photographers following on from a US case decided in June (Fitzgerald v CBS Broadcasting - 1,2). He contrasts the US 'fair use doctrine' with the 'permitted acts' (fair dealing) equivalent in the UK, noting the general similarity but highlighting a key difference: the UK exception doesn't apply to photographs.

    Monday, 8 October 2007

    'The only show in town': Meyer on the PCC

    The Guardian has an interview with Sir Christopher Meyer in which he is forthright / confident /ebullient / self-congratulatory / blase / complacent (delete as deemed appropriate) regarding the position of the PCC, having purportedly been reassured by soundings from the Department for Culture Media and Sport. Of course, this reassurance is fair recognition for the improved performance of the PCC under Meyer's stewardship.

    The recent steamings from the palace, however, are treated as an affirmation of the wisdom of the 'friendly counsel' approach of the Commission to newspaper editors (the Mail having pulled its paparazzi shots of the royal couple). Meyer does seem to overlook the explicit threat of reversion to the courts by an exasperated prince, with its attendant risk of a collapse of trust in the regulator and an emergent hard-edged privacy law. Moreover, his claim that potential claimants now prefer the PCC to other avenues is - I am sure many practicing media lawyers would agree - hopeful at best.

    Friday, 5 October 2007

    McKennitt v Ash: the sequel proves a damp squib

    The litigation between Niema Ash and Loreena McKennitt has finally ended in a settlement, after Ms Ash agreed to forego publication of a second version of her book, Travels with Loreena McKennitt: My Life as a Friend (1). This second version had been intended to take account of her failure to persuade the courts to permit publication of the first version, but it too garnered objection from her subject. The first dispute ended earlier this year when the House of Lords rejected Ash's application to appeal the judgment of the Court of Appeal.

    Commenting on today's events and the dispute more broadly, Greenslade has perceived "a dramatic landmark as far as press freedom in general is concerned". With shades of Spycatcher, he notes that "all the bits that upset McKennitt have already been published in Canada and the United States. As so often, it is British courts that have been overly restrictive". This is important. If we are talking about breach of confidence, then when the story is out, its out. However, if we are talking about protecting privacy directly then - if its accepted that there is an intrusion in a given case, which Greenslade contests as regards this instance - there probably is some merit in seeking to limit the extent of the harm caused. Perhaps, this is an irregularity that is borne of how our courts have developed the law in this area, and one that might best be resolved by legislative intervention.

    PCC clears newspaper's use of YouTube footage showing juvenile criminality

    In its second ruling on the use of video footage by newspapers online, the PCC has dismissed a father's claim that a newspaper's use of YouTube video of his son's criminal misbehaviour breached clause 6 (Children) of the Editors' Code (1). The footage showed the boy and others throwing firebombs at a passing train; it has been uploaded to YouTube by the children themselves. The Northwich Guardian had embedded the footage in its online provision, and used stills in its print edition.

    The Commission explained that the Code does not include a blanket ban on publishing photographs or stories about children without consent. It considered that it was in the public interest to publicise the incident in question, which was of a serious and anti-social nature and had been committed by individuals who were over the age of criminal responsibility. Together with the fact that the footage had been placed voluntarily in the public domain by the complainant’s son, this justified the conclusion that the information was not private. The NG's action had been "an entirely legitimate journalistic exercise".

    The Commission also noted that "it would have been contrary to any common sense or fairness for the Commission to afford greater protection to the youths in this case than to other law-abiding children... [given the] circumstances where innocuous pictures taken of children in public places do not normally breach the Code". This nods in the direction of the High Court ruling in the recent JK Rowling case, although this judgment is subject to appeal. Moreover, the Commission was rightly adamant that it should do nothing to undermine the right of the Press to scrutinise anti-social or criminal activity outside of situations were specific legal restrictions applied (eg contempt).

    Crowngate report sees demise of BBC1 controller

    The Guardian is reporting that Peter Fincham, the controller of BBC1, has resigned following the publication of the Wyatt report into the 'Crowngate' affair. He was joined on the job market by Stephen Lambert of RDF (the firm at the centre of the affair). The BBC has also instituted a further range of measures in order to improve its future performance.

    The Wyatt report focused on two primary matters: how did the footage of the Queen come to be
    shown at a BBC1 press launch? and, why did the BBC wait so long to correct the story and issue an apology? It appears that Fincham's mistake was to have delayed in issuing a correction from 5pm on the relevant day until the following morning. Lambert has previously admitted being more immediately at fault, and it has been surmised that the BBC has warned RDF that it would not deal with it while the executive remained in post.

    The trailer at the root of the matter can be seen here, while the Wyatt report is available here.

    Thursday, 4 October 2007

    Fashion statement: clothing as expression worthy of protection

    Eoin O'Dell has a nice piece on regarding the risks of expressing oneself sartorially, at least in the US, and the protection that might be afforded by rights instruments. It brings to mind interesting questions that trouble me from time to time: why are media products often considered to be 'special' artefacts in political debate because of their contribution to 'culture'? Might not a ceramic jug, ornate mirror, or ragged trouser similarly express something of value?

    Should the Wolf think no one is listening? Middleton bleats again

    The Daily Telegraph carried a piece yesterday highlighting a letter sent by Prince Charles' solicitors to the PCC warning of legal action as a prospective, if last, resort should the perceived harassment of Ms Middleton not cease. The solicitors are said to have filmed the disturbing activities of the paparazzi outside her London home to support any complaint.

    This isn't the first time Middleton has raised the issue of paparazzi harassment. In July, she complained to police, while in April she pulled a complaint made to the PCC. The article includes a quote from a 'senior industry source': "essentially, they will be trying to guarantee that photographs of Miss Middleton can be taken only on her terms. I am afraid it does not work that way". I'm afraid the mood music suggests that it might soon, and maybe should...

    Mistaking plagiarism for copyright (for TV format protection)

    Mark Lawson gets it wrong on the ideas-expression dichotomy in the Guardian when comparing Raymond Blanc's Restaurant with Alan Sugar's Apprentice. But others have long made the case for - and mooted options regarding - the protection of TV formats under UK and EC law (1,2,3) (...under French law? - 1,2; Australian law? - 1), not least resulting from the sheer scale of the international trade (£1.6B in 2004 according to FRAPA and ScreenDigest).

    Wednesday, 3 October 2007

    Fall out from BSkyB

    Chairman of the Competition Commission has been widely reported as indicating a preference for a sale of shares by Sky as the putative remedy to the provisional competition problem identified by the Commission yesterday. This should be read as a general preference, rather than something specific to this case. The notion is that behavioural remedies require ongoing surveillance and therefore increase the regulatory burden. The Commission is bound, however, only to intervene to the extent necessary and so if BSkyB can make a reasonable case that it will be true to its word behavioural remedies it will be (eg coherence with Chairman's action on major votes). Sky might yet have the last laugh over the crowing Branson. The OFT would nonetheless have residual powers to review the effectiveness of the remedy agreed.

    It also reported that a non-executive director of the company has mooted legal action to seek redress if it is forced to sell. This is a nonsense. The argument goes that Sky adhered to the letter of the law by not exceeding the 20-20 media ownership rule, and so shouldn't now have the rug pulled from under it. The obvious problem is that two different areas of law apply to transactions of this sort, and one can't pick and choose that by which one will be bound. It would always be open to Sky or others to lobby the government for a change to the framework as it stands, but failing that...

    Journalism in the public interest?

    In a post yesterday, Greenslade took issue with recent News of the World shenanigans dressed up as investigative reporting. Its a nice illustration of the old trope: 'public interest = interesting to public?'

    Tuesday, 2 October 2007

    Shades of Tynan: US student newspaper 'tests freedom of the press'

    The MediaGuardian carried a story today regarding a US student newspaper 'op-ed' that included the (unbawdlerised) thought '...F@*! Bush'. Whether he was having a laugh, or seriously endeavouring to test the limits of free speech in modern day USA the young journalist in question has apparently kicked off quite a storm (1,2).

    Chicken Lickin bad!: Commission (provisionally) finds competition problems

    The Competition Commission announced today its provisional findings in respect of the merger between BSkyB and ITV arising from the former's acquisition of a minority shareholding in the latter. Its bad news for the Murdoch business, as the Commission has identified a substantial lessening of competition attendant on the loss of rivalry between the two companies in the 'all-TV market'. The provisional findings have now been opened for comment, and the Commission is also consulting on possible remedies (albeit that only a summary note of the report and the notice of possible remedies are available as yet). It expects to offer its final advice to the Secretary of State in December.

    Interestingly, the Commission reached three specific findings. First, it confirmed that a merger had taken place. It agreed with the OFT that "the size of BSkyB’s holding both in absolute and relative terms was such that on the basis of past voting patterns it would be likely to be able to block special resolutions proposed by ITV’s management".

    Secondly, it reached the conclusion that the competition limb of the assessment was implicated. This finding was based on the logic that free-to-air services (FTA) pose a constraint on BSkyB’s pay-tv offering; that the BBC and ITV are both key to the strength of FTA, and that consequently the merger allows BSkyB the incentive and the opportunity to influence ITV’s future strategy in such a way as to minimize the constraint imposed on its pay-tv (para 16 - summary). It gave a number of examples of potential influence (paras 18-19). Notably, the counterfactual used was an independent ITV, and not an ITV subsumed within Virgin Media (although such a possibility was countenanced in consideration of future competitive constraints on BSkyB). Moreover, the Commission concluded that there was not likely to be any competitive detriment in the advertising, bidding for sports rights, or news provision markets (paras 22-28).

    Importantly though, and thirdly, the Commission also considered that the media public interest consideration in question (s.58(2C) of the Enterprise Act 2003) had not been breached. The Commission acknowledged the importance of the wider regulatory framework and noted that "existing regulatory mechanisms reduced the scope for influence over editorial decisions by owners of television channels which broadcast news". In addition, the Commission identified that journalistic and editorial ethics and controls - the "strong commitment to editorial independence" - would see resistance to attempts at interference by owners with news output. It considered that the level of control acquired by BSkyB would not allow it any significant measure of influence over ITN (in which ITV holds a 40% shareholding), and so the number of 'news voices' would be unaffected (paras 30-43).

    As regards remedies, the Inquiry Group has mooted requiring full divestiture of the shareholding, partial divestiture, or partial divestiture combined with behavioral remedies (for example, restricting BSkyB's freedom to vote as it may wish or ability to seek board representation in future).

    If these provisional findings and remedies are confirmed and followed by the government, the upshot looks bleak for BSkyB. Notwithstanding James Murdoch's claim that the purchase had been undertaken with the long view in mind, the investment will have been a disastrous one (somewhere (?) in the Sunday papers this week the shareholding was estimated to have fallen in value by well over £100m since its purchase). Moreover, presumably just to stick the knife in, Richard Branson was to be found in the Observer mulling the continuing possibility of a Virgin-ITV tie-up. [Interestingly, the following excerpt is taken from the interview: "Asked if he detects a new willingness to take on Murdoch in government circles, he says: 'I think there may be a government in power that wants to do what's right (my emph.) - and that is a brave thing to do.' "].

    The Secretary of State is obliged to follow the Commission's conclusions on the competition question (if they remain unrevised when given to him), but can decide the matter differently on the media policy ground (which in this case could presumably only involve an exacerbation of the negative finding).

    Monday, 1 October 2007

    Fake Photo or Fake Politics? Purnell - predictably - criticised re faked photograph

    After lecturing broadcasters last month, Culture Secretary James Purnell has become embroiled in a fakery row all of his own after his (non-)agreement to the merging of a PR photo of himself with an earlier one of other local MPs and executives outside a Tameside hospital (1,2). Elevating the event from being a mildly humourous postscript to a summer of deception revelations (and in what can only have been an effort to damage their own credibility), a number of Conservatives swiftly pronounced that Purnell's position had somehow become 'untenable'. That said, Purnell's lame response, (or was that here?) almost seemed to lend weight to the calls (see the Guardian for the faked photo itself.

    The really big weekend deception story, of course, was that extras had been used on a bus in the filming of Nigella Lawson's latest series... devastating!!

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