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).

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?'

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).

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!!