1. Background

By the end of the 1980s, the explosive commercialisation of the mass media sector - resulting in a drastic growth of output in the electronic media - provoked a new wave of concern. The increasing globalisation of media company operations and rapid technological changes in media distribution brought the concern over the concentration of the media back into focus. The appearance of "media tycoons" - some with international ambitions and working in several media sectors - caused great debate about the concentration of power. In 1989 the Council of Europe undertook a series of studies to monitor these new developments.

Within Western Europe, however, the situation was very different. After a period of privatisation and the launch of many new media outlets in both radio and television, the already dominant actors in the field consolidated their power and some remarkable mergers took place. Nevertheless, European governments continued to worry about the concentration of ownership, despite the recognition that strong ownership can have a positive effect on pluralism in the media.

2. Conceptual issues

Before turning to the overview of policies and regulations, it is necessary first to address some of the conceptual issues involved.

Dissent and controversy have accompanied every step of the debate on media concentration - beginning with the very definition of the notions themselves. It is more the rule than the exception that, after lengthy debate on details and proposals regarding media ownership and its consequences for pluralism, the discussion breaks down. This is due to different parties in the discussion employing quite different, and incompatible, understandings of the central concepts of media, pluralism, concentration, information, freedom of expression etc.

2.1. Definitions

Media concentration can be defined in a number of different ways. Perhaps the best brief definition, as opposed to a lengthier description, is the "working definition" suggested by the Council of Europe:

In relation to media concentrations, the notion of pluralism is understood to mean the scope for a wide range of social, political and cultural values, opinions, information and interests to find expression through the media.
Pluralism may be internal in nature, with a wide range of social, political and cultural values, opinions, information and interests finding expression within one media organisation, or external in nature, through a number of such organisations, each expressing a particular point of view.

Without going into too much detail of the nuances of terminology, there is one important distinction to highlight: the distinction between external and internal pluralism suggested in the working definition of the Council of Europe. Of course, other uses of this conceptual pairing are legitimate, yet experience has shown that considerable confusion arises from different uses of these notions.

2.2. Media power and abuse of power

The definition of media pluralism as based on content in the media does not solve another conceptual issue crucial in the choice of policy approaches to media concentration. It is often claimed that strong media companies, and even the reduction of the number of outlets or media companies, may well be favourable to pluralism in terms of content. It has been argued that only actual and proven abuse of positions of power call for media policy measures. This is consonant with the attitude in competition legislation that it is the abuse of a dominant position - not simply having a dominant position - that should be the target of such interventions. More often than not, those in positions of power within the media tend to emphasise their liberal attitudes and broad perspectives and to downplay the role of ownership in general, arguing that the real power belongs to the content producers (the journalists) or the "market" (the advertisers).

This view is mistaken - and remarkably difficult to dispel - as it fails to distinguish between power as a potential to perform an action, and the exercise, whether laudable or reproachable, of power. It is the common view that while abuse of power should obviously be contravened, power in itself is not considered a bad thing. This may be true generally, but in terms of democracy and pluralism, as well as freedom of expression and opinion, it is crucial to note this distinction as such seemingly theoretical definitions of terminology may guide the entire approach to governmental regulations and interventions.

If a group occupies a position of power, one that allows it to control sources of communication and therefore the dissemination of information and knowledge, this power would become increasingly concentrated in a way that a broader and more democratic division of control would not. Of course, one cannot assume that all powerful players abuse their power. The problem is one of potential and risk, not necessarily a problem of actual abuse. But this does not make the problem of abuse of power more theoretical or hypothetical. On the contrary, most discussions on constitutional matters, human rights and other principles for governing society deal with the construction of systems for distribution of power and the opening up of possibilities for individuals and groups to exert influence within society. It is clear, therefore, that it is the structure underlying the distribution of power that requires examination rather than the solely the allegations of abuses of such power.

The problem of media concentration is thus more constructively analysed as an issue of risk assessment and risk prevention rather than a problem of finding fault in the specific exercise of power. The big media owners are successful in market terms and this leads to the assumption that they are skilful and broad-minded in the handling of their businesses. Their success is also often justified by the quality of their products, both in terms of content and consumer response.

Now, if the problem of media concentration is a problem of risk, or power, is not the above-mentioned definition of the problem as a problem of content obfuscated?

It does complicate the problem, that is true, but basically it does not change the question. If media concentration concerns the organisation of content-provision, organisational or structural matters come in the foreground from either perspective as organisation informs power structures. Many aspects of a company's structure can influence content: ownership, internal organisations, supply relationships, other kinds of economic relations and even, of course, personal relations.

As analysis has clearly demonstrated, the relationships between these kinds of power and media concentration in terms of content are very complex: it is extremely difficult to predict the consequences of any kind of change in the power structure for the content. As in all human contexts, the consequences of actions are by definition unpredictable, due to the existence of choice.

3. European efforts towards a common approach to media concentration

3.1. The Council of Europe

Monitoring and analysis
The Council of Europe bases its work in the media field on Article 10 of the European Convention of Human Rights, which deals with freedom of expression and information. Media thus come into a fundamentally political framework: it is the adoption and practice of human rights - under the supervision of an international system of sanctions - which is the basis of a democratic society. Today, the mass media are an integral part of this system of freedom of expression, and unless freedom of expression is a reality in each Member State of the Council, the democratic ideals of the organisation are in jeopardy.

The Council of Europe has played a role in achieving a certain level of common European legislation through a set of conventions adopted by the Member States. Within the media field there are also certain conventions - the best known is probably the Convention on Transfrontier Television adopted slightly before (and in essence a model for) the European Community Directive, Television without Frontiers.

The Council began its current round of deliberations on media concentration in 1989. The ambition was, as in the case of transfrontier television, to arrive at some political agreements, which would hopefully lead to common regulatory initiatives. This was obviously a motivating factor in both the Secretariat and some of the most active countries in the Council's standing media committee (CDMM).

Initially, the plan was more modest: to examine through a common framework the developments and consequences of changes in media structure and ownership within individual countries in relation to the goal of pluralism.

A series of questionnaires addressing both legal and structural issues was distributed to a number of Member States and two consultants were engaged to analyse and report the outcome of the responses to this questionnaire. A working party was set up to monitor the work and prepare the reports.

The outcome of the story, thus far, is that the Council of Europe has produced studies, data and overviews pertaining to various aspects of the media concentration issue. In only one instance was a regulatory text adopted - the 1994 Recommendation on transparency. It is likely that a document on the advisability of adopting measures to deal with the negative consequences of concentration of ownership in the media will be presented in 1998.

More important, perhaps, is the construction of a monitoring mechanism within the Council. This consists of a network of national correspondents in each Member State that reports, in a standardised framework, on media structure and media regulation of relevance to the media concentration issue. A Committee of Experts of the Council analyses and develops the material supplied by the national correspondents. It is difficult to understand why the Council - which enjoys much prestige through a permanent body, the European Court of Human Rights - is so hesitant to permanently engage in the monitoring of mass media pluralism, which is of central importance within democratic societies today. The Committee is commissioned to suggest possible measures to the standing media committee and other bodies of the Council, including the Conferences of national Ministers responsible for media policies. Those conferences of Ministers has met every three years since 1988 (the last meeting was in Thessaloniki in December 1997). It is, however, a temporary body and, as such, can be abolished at any time should other issues be deemed more important.

It seems quite clear - despite concerns over the lack of "concrete results" in terms of proposals for international regulations (as if they are concrete!) - that the results of the work undertaken to date demonstrates a need for a more permanent mechanism in this field.

3.2. The European Union

The European Community, later the European Union, approaches media issues from a different perspective than the Council of Europe: the EC views it from a position of economic integration and the establishment of a European internal market. This, however, does not preclude rivalry between the two organisations, as demonstrated in the case of transfrontier television regulation.

The European Parliament, since the end of the 1980s, called for initiatives to curtail the growing concentration of ownership in the media. This originally came from German Social Democrats and printers' trade unions. The Commission responded to these initiatives by issuing, at the end of 1992, a "Green Paper" on Pluralism and Media Concentration in the Internal Market. After a lengthy period of consultations, debates and considerable lobbying from major transnational and national media groups (European Publishers Council, EPC), Commissioner Mario Monti was prepared in July 1996 to present the text for a directive to his colleagues.

In August 1997 the process took a new course as German Chancellor Helmut Kohl dispatched a letter to the Chairman of the Commission expressing his resistance to the entire project of common regulation, arguing that it is a matter for national legislation. Pressure from media industry lobbying groups has also continued. At present, the prospect of a common European agreement looks rather bleak, although the Commission continues to work on the project, and its officials continue to express optimism regarding adoption of such an initiative, despite frequent rumours, possibly disseminated by lobby groups, to the contrary. If a draft directive is proposed, years of negotiation will inevitably follow. The adoption of legal texts in Member States is not likely to take place less than ten years following the introduction of initiatives. (In the case of Sweden, any adoption of restrictions on press, cable radio and television ownership will likely require an amendment to the constitutional laws on freedom of the press and freedom of expression before any special legislation could be adopted.)

The Commission claims that the existing texts are irrelevant to today's media environment although they still contain many options for regulations developed in the intra-commission talks. They were constructed upon two rather simple principles:

1. The maximum share of audience permitted to a single media organisation in radio or television should be 30 %.
2. The amalgamated share of radio, television and newspaper audience/readership should not exceed 10 %.

One alternative to a directive on ownership might be to promote transparency of media ownership, rather than regulating maximum shares. The "common position" on a directive regarding a transparency mechanism for Information Society services reached at the 27 November 1997 Council of Internal Market Ministers might serve as a model for a similar development in relation to the media concentration issue.

4. Overview of European policies and regulations on media concentration and pluralism

4.1. Introduction

Political debates on media concentration have mostly centred on introducing statutory measures, legislative regulations or other kinds of prescriptions adopted by public bodies.

It is, however, crucial to any realistic perspective on the policies and regulations of media concentration that the definition of regulation be broadened. It is true that "land shall be governed by law", and it is true that interventions in the media sector should be permitted only on a basis of equitable treatment of the media, without regard to political affiliations or tendencies. It is also true that in most democratic states the adoption of legislation is the usual method of establishing procedures of public governance.

The creation of European Union has led to widespread belief in regulations, precisely address new situations resulting from liberalisation, privatisation and international economic integration. The primary instrument of the Union is, of course, regulation, either harmonising national laws through directives or in some cases implementing direct regulations. Although the Union has far-reaching ambitions to influence the economic structure through new regulations, this is possible only to a limited extent. Other factors might easily overtake regulations adopted after a pain-staking process of negotiation in the EU framework.

Therefore, it is crucial to consider alternatives to regulatory action. Governments also govern by creating organising authorities, by making various decisions on a day-to-day basis, by allocating money and other resources, by devising taxation systems, by simply monitoring developments and by influencing public opinion. Private actors might on the other hand also choose to adapt themselves to demands which are not only of an economic nature. For example, they may withhold from action on some occasions, collectively or individually.

1. Restrictions
2. "Counterweights"
3. Economic interventions
4. Transparency measures
5. Organizational measures

4.2. Restrictions

4.2.1. Regulations

General
Most countries' constitutions include references to freedom of expression and of information and, at least indirectly, the necessity to uphold pluralism in the mass media. Some constitutions also include an obligation for the state to supply a basic amount of information to their citizens (the German Grundversorgungspflicht).

Most countries apply competition legislation to the media sector. Some exceptions are, however, to be noted. US legislation authorises certain kinds of co-operation between newspapers. The EU Merger Regulation provides an exemption for reasons of the "plurality of the media" from the exclusive right of Community institutions to regulate mergers between companies, which has reached a "European" dimension.

Sweden's special constitutional laws of freedom of the press and of expression have generally been interpreted as prohibiting any interference in the freedom of establishment - including acquisitions of companies - in the press and cable sectors.

Special
A number of countries have quantitative restrictions to media control based on the number of channels (Italy, Portugal, Spain, Sweden), the share of audience (UK, Germany, France), the share of circulation or absolute circulation in the press sector (France, UK), the share of foreign holdings (Poland), and the shares held in one channel (Norway), or the right to vote (Sweden). These types of restrictions may pertain to one kind of media outlet or may be constructed as restrictions of certain combinations of ownership (e.g. Italy, UK, Sweden).

4.2.2. Voluntary agreements

In the field of media ownership and structure it is rare to have voluntary agreements between the actors regarding mergers of companies. In the Netherlands national press, however, an agreement has been made among media owners not to exceed a maximum share of one third in the national press. Of course, various tacit agreements on market division might be included in this kind of restriction. However, the decision not to compete to the bitter end - though it deeply affects media structure - is not usually regarded as a means of promoting pluralism but rather the opposite since it cements the local monopolies. Systems for reducing costs of distribution by co-operation between competitors also exist - in Sweden this kind of distribution is subsidised by the state.

4.3. Counterweights

4.3.1. Public service radio and television

The early model of radio and television monopolies in Europe was consciously designed as a counterweight to commercial systems in the US and the prevailing free market in the press. Authorities and politicians generally did not trust the commercial sector to provide news that was reasonably free from bias. It is clear, also, that states felt a certain reluctance to give free reign to the new media, which were felt to have a much stronger impact than the older media, such as the press and books.

Since the resources (frequencies) for broadcasting were scarce until rather recently, there were other good reasons for introducing general licensing systems and public financing (licence fees) for radio and television. In authoritarian or dictatorial regimes much effort was, for obvious reasons, expended in arguing that pluralism was not important. As a whole, however, pluralism in these media was not really an issue until the expansion of media outlets and broadcasting after World War II. Mostly, the state monopolies were of an official or semi-official nature and for this reason were not permitted to be biased in their perspectives. Following the development of new media resources (the FM-band, more television frequencies etc.), public regulation gradually emphasised an obligation to reflect different opinions and views. As private operators were let into most European radio and television sectors in the 1970s and, abundantly, in the 1980s, the objective of pluralism, catering to universal access, minority opinions and groups and independence of private financing (i.e., non-profit principles) became overriding. It was at this point that the need for "counterweights" was fully recognised.

Generally speaking, the meaning of public service broadcasting has changed from an early "classic" (British) conception, where it was understood as a framework for the entire system of broadcasting, involving different assignments, sources of financing, owners etc. - all viewed from the position of the "public interest". Today, public service broadcasting is instead regarded as one particular media sector, differentiated from the commercial, privately owned sector. Moreover, public service broadcasting (no one talks of other kinds of public service media - so far) is today linked to specific companies, institutions or channels, not to the intervention of public authorities to promote a certain kind of programme content independently of the broadcaster. Despite some proposals here and there to emphasise content rather than the institutional aspects of the public responsibility for broadcasting and the promotion of independent productions, the general attitude toward public service broadcasting has not changed.

4.3.2. Non-profit (community) radio and television

4.3.3. Internet facilities

4.3.4. Cultural policies

4.4. Economic promotion

In international discussions indirect and general subsidies are generally looked upon more favourably than direct and selective ones. The reasoning behind this is rather simple: selective and direct subsidies are often judged to be subject to political and other kinds of manipulation.

Actually the picture is more complex, and the balance of "pluralism profit" between these approaches is not easy to establish. The general subsidies approach normally means that the major share of the money goes to those who are already strong on the market, therefore having negative repercussions for the goal of pluralism.

4.4.1. Indirect support

4.4.2. Direct subventions

Direct and selective support to the production of daily newspapers exists in Finland, Norway and Sweden and, on a smaller scale, Austria, France and Italy. Selectivity is normally regulated by way of general criteria, such as the level of market share in an area, profitability of the product etc.

A direct, but not selective, subvention is given for the distribution of the daily subscription press in Sweden and France.

Development contributions are often considered a more "neutral" way of subsidising media companies. Such contributions exist in several countries (for example, the Netherlands, Norway and Sweden).

4.5. Transparency

Transparency is sometimes viewed as goal in and of itself and sometimes as a means to achieve the aim of pluralism in the media.

Transparency is conceptually related to the notion of power or control, because to a certain degree power rests on some superiority of information, which must not be transmitted to competitors. Complete openness can mean a lack of power, for any person in any social context.

The link between the concepts of transparency and control was studied in a report to the European Commission in the course of the preparation of a project for a directive on media ownership. The outcome of that study was a generalised approach to the control of media companies, taking into consideration not only formal ownership of the media but also other aspects of power. Accordingly, transparency of control in the media should include a whole spectrum of factors of influence, such as agreements, financial dependence, programme supply relations etc.

4.5.1. Why transparency?

In general terms, this question has already been answered: the consumer - also a consumer of the mass media - has an interest in knowing as much as possible about the product, including the background and interests of the producer or supplier, in order to make the most informed choice. But there are also other reasons of a more political nature. They might be broken down into the following two subcategories:

Basis for regulation
The public interest, pointing in some cases to a need for some intervention in the media market, must be linked to an assessment of power, in real terms. It is pointless, for example, to regulate or intervene in the practices of a company or group of companies if it is not based on a genuine knowledge of who is actually in control.

4.5.2. Methods of promoting transparency

Just as in other cases of intervention in the media sector, there are both voluntary (e.g., agreements on statistics and other data on audience shares) and statutory regulatory methods of intervention.

Both of these methods are subject to either a more "passive-prohibitive" or a more active-researching approach. Also, any method can be more general, applicable to all businesses or associations, or more specific, applicable only within the media sector.

The recommendation of the Council of Europe on transparency in the media sector (1994) specifies a framework for transparency in terms of possible methods. Generally speaking, however, it is clear that the degree and scope of transparency depends largely on the political will of the authorities within individual countries.

General statutory transparency regulations
Most countries prescribe some degree of disclosure of ownership of all publicly held companies. Some restrict this openness to companies registered on a stock exchange; others apply a more general approach to all companies. The transparency can be geared to the needs of public authorities or to the general public at large. Media companies are, as a rule, included in this general regulation. Effectively, however, the degree of transparency varies considerably, and the difficulties might be classified under a rather small set of categories.

A special case is the award of concessions or licences in radio and television. Normally, the government or some subordinate agency is responsible for such decisions. It goes without saying that in these cases transparency is much easier to establish than in a free market situation where no licence conditions prevail. Most European countries enforce licence systems for radio and television, irrespective of their forms of distribution. There are, however, exceptions. One interesting example is that in Sweden, licensing is the exception rather than the rule (although it nonetheless has a vast influence on the market).

A variety of difficulties may also arise in structures based on concessions. One case would be a company that is, by agreement or economic dependence, linked to a group organising a network (Slovenia's "Pop TV" is referred to as an example) controlled by a non-concession holder. The change of ownership might be differently regulated and sanctioned. The Swedish case of change of control over the - thus far - single terrestrial commercial television channel (TV 4) may illustrate another kind of difficulty. In the end, neither sanctions in law nor licence conditions prevented the major Swedish media group from taking control of the channel - and less than one year after the new licence was awarded to another constellation of owners!

As a whole, the system of concessions - in light of the development of new forms of distribution by digital means (Internet, digital terrestrial and/or satellite, other kinds of networks) - might not be viable much longer. These developments might cause the notion of a "channel" as we now know to become obsolete and also to radically transform transparency conditions.

"Active" means of promoting transparency
If transparency is a means of assessing power and also influencing power structures, no interested party can rely solely on formal rules obliging companies to disclose information. Information must be actively sought and retrieved, and a number of methods will need to be utilised. Research is one such means, both scientific research and other ways of systematically collecting data and documentation. Such investigation would result in the creation of databases, registers, statistics, various publications, schemes of comparison etc. It is noteworthy that the EU, in its preparatory work for a directive, presupposes that each member state should be capable of assessing and monitoring issues of media ownership within its own borders.

Non-regulatory means
A number of countries have editorial statutes that guarantee some knowledge among editorial staff of the interests and ownership issues within a particular company. Norway exemplifies a country where such a statute is proposed to be erected into law.

4.5.3. Difficulties for transparency

• The general secrecy of business partners' internal agreements in a company: though ownership may give certain information on the control in a company, agreements might result in quite different actual relations of power and strategic decision-making.

• It might be difficult to determine, with an acceptable degree of impartiality, who effectively controls a company as media companies are often involved in complex partnerships, alliances etc. The German legislation and prescriptions on minimal shares in television companies when calculating audience shares - determining maximum number of licences - is illustrative in its complications. This may be one of the stumbling blocks for the passage of an EU directive.
• Similarly, statistics on audience share are notoriously complex and unreliable, and therefore transparency regulation built on such data will be correspondingly problematic.

4.6. Monitoring and authorities

The monitoring of the media, looking at issues of encouraging pluralism and media concentration, by an institution or authority, might be considered an "active" method by which to promote transparency as described above. It might, however, constitute a mechanism itself, as it will be a key component within many other approaches.

General
Competition authorities in most countries are also responsible for the media sector. Sweden is an interesting exception due a legal conflict between the constitutional freedom of expression - which includes absolute freedom to establish a media company (press or cable) and publish anything legally permitted - on the one hand, and the desire to prevent monopolisation, on the other.

Special
Competition regulation is viewed quite differently within countries that not only include the media within the scope of their regulatory responsibilities, but also have introduced specifically strict regulations for this industry. The majority of European states have introduced regulatory bodies and some restrictions on ownership in order to promote competition and/or pluralism in radio and television. Some of these countries are: Belgium, Germany (with the recently established KEK), France, Italy (which is in the course of establishing a new authority that also supervises telecom companies), Norway (which is also setting up its media pluralism authority), Portugal (with its Alta Autoritade), and the UK (with its strong institutions). Most Eastern and Central European states have radio and television "councils" responsible for the allocation of licences.

Regulations for the press are normally supervised by other public agencies (as in the case of France and the UK), while other countries (Norway and Italy) adopt industry-wide policies.

International
International organisations have played an important role in the monitoring process for some time. In fact, national measures have often been inspired by international discussions in this field. As described above, the Council of Europe - in accordance with its remit in the field of human rights - has long felt an obligation to examine, analyse and discuss measures to counter monopolistic tendencies in the media. The European Commission has clearly also demonstrated a desire to act as a monitoring agency in this field, by promoting analysis and resistance to monopolisation, although its broader goals of implementing regulations have been, to date, unrealised.

On the global level, Unesco has taken steps to monitor developments, although this organisation still suffers from the consequences of the political controversy over the mass media in the 1970s and 80s, which led to the withdrawal of the US and UK from the organisation as mentioned earlier.

5. Conclusion: Nationalistic media policies at the end of the 1990s

Trends and developments in the era of convergence
Professor Karl Erik Gustafsson of Göteborg University has observed that media policies of the last decade have taken a somewhat ironic, albeit not unpredictable, turn. During a time when Europe is seeking to integrate its economic activities - as a basis for a union in a vast number of fields - when global economic integration makes national frontiers less and less important and states gradually less powerful in economic terms, national media policies seem to emphasise the role of national media companies. "Our" companies become subject to protection and oversight by national governments - even at the cost of pluralism on the national level. There are two consequences, observable in a number of legal contexts and international forums, to this attitude.

First, the national tolerance of concentration of already powerful actors increases: in some countries (UK, Germany, France), maximum market shares have increased, and generally the attentiveness to the concerns of the major players in the media field also has expanded. Effectively, this might lead to shrinking pluralism in the media on a national level or at least to a reduced number of controllers of media companies. Whether this will be accompanied by requests for a higher level of "internal pluralism" in the media remains to be seen.

The following titles (given in English translation) are available:

1. What is media concentration?
2. Media concentration - a bibliography
3. Swedish media owners
4. Private local radio
5. Freedom of expression, constitutional legislation and media concentration
6. Swedish journalists on pluralism and media
7. DN Debatt
8. Television in Sweden
9. Music, Mass media and Pluralism