The real issue is fair competition… not ‘unfair propaganda’

Right: I thought I’d point that out from the start, because – with very few exceptions – most of the people commenting about Lovin Malta’s court case against Net and One TV seem to have missed the point of the entire exercise.

And that, it seems, also goes for Lovin’ Malta’s rationale in opening this case to begin with. On its online news portal, for instance, LM listed no fewer than 15 arguments against a law which permits both Nationalist and Labour parties to own their own TV and radio stations.

Yet by my count, only one of them has any clear, legal relevance to the case at hand: and of the rest, only around two or three are even worth even mentioning at all (and even then, just to buttress the main, rock-solid line of argument: nothing more).

But let’s get the irrelevant ones out of the way first. In first place, there’s: “[NET and One] don’t follow impartiality rules demanded by the Constitution”; and then, further down the list: ‘They brainwash people into believing there are only two ways of thinking: red or blue’.

As for the rest (of the irrelevant ones, anyway): they more or less all hover between those two central trains of thought. For instance: ‘They don’t balance each other out’ is actually just a rephrasing of point number one; ‘They allow politicians to escape accountability by drowning out real journalism’ is, at best, a subjective view-point… and in any case, it remains a logical consequence of point number two, etc. etc…

But the real problem is that those two motifs are being presented as the primary justifications, in a case which is actually asking the court to declare the current ownership of those two media outlets illegal.

Please note: ‘ownership’, not ‘content’. And you can’t argue against the ownership of a media station, on the grounds that ‘its contents are crap’ (otherwise, what about private stations which show little more than teleshopping – or anything else that may be considered ‘crap’ by some (but not all) -  24 hours a day? Take the station away from its rightful owners?)

None of those arguments has any real place, in what is ultimately a legal (and logical) challenge… not just to what is shown on those channels, in and of itself; but rather, to the fact that those stations are owned by political parties in the first place. Two very different things.

For starters, it is unwise to base the argument so exclusively on one’s own subjective notions of ‘impartiality’ or ‘fairness’. This is partly because that is just a matter of opinion… but partly also because the defence is basing its case on human rights, too: specifically, the one about ‘freedom of expression’.

Any particular reason why the Constitutional Court should bow to Lovin Malta’s interpretation of that right… and not, say, ONE or NET TV’s? No, I can’t think of any, either. And certainly, none which cannot also be made to apply just as well to non-politically owned media.

For let’s face it: you don’t have to be ‘owned’ by a political party to parrot its propaganda line… or to ‘drown out real journalism’… or to ‘deny access to free and fair information’. I would have thought there are enough media houses – in Malta, as everywhere else – that are doing a good enough job of all that already.

But in any case: this brings me back to the point of the headline. The only truly relevant argument (relegated to point No. 10) is: “They make it impossible for private companies to compete in the TV space, reducing pluralism”

Ah, that’s more like it. Leaving aside the irrelevant ‘pluralism’ part, and expanding the core principle beyond the confines of TV alone (it’s just as true of radio, you know)… this is the one argument that has so far defied any proper legal (or logical) response.

There is, after all, such a thing as a ‘Malta Competition and Consumer Affairs Act’ in our current legislation; and competition law does specify that you cannot have a situation in which any private company enjoys an unfair advantage, denied to everyone else competing in the same market…

There: no need to drag any human rights into it at all. Political party ownership of media should be banned, because it openly violates the principle of free and fair competition. And it does this in ways which are separately cited in LM’s list – e.g., that ‘they don’t publish their audited accounts and haven’t for more than 10 years’; ‘They don’t pay their TV license fees or their water and electricity bills’; and (above all) ‘they are used to circumvent party financing laws’, etc.

All those points arise directly from the issue of political ownership: for who else, apart from the parties themselves – and yes, maybe one or two of the ‘big boys’ – can afford to not pay their utilities, or even BA licences, for decades on end… without ever facing any consequences? I’m sure lots of other media houses would jump at the chance to benefit from such concessions: and I have no doubt the savings would help when it comes to competing, too.

But no: even on this (admittedly superficial) level… the market can already be seen to be distorted. Some animals emerge as notably ‘more equal than others’… and last I looked, that was a big no-no, in a country that supposedly bases its economic model of European free market policies.

And there’s more, too, before we even get to the ‘advertising’ part. As Lovin Malta rightly notes, party-owned media also ‘create a huge conflict of interest for the Broadcasting Authority which is made up of party-appointed individuals”.

How many other commercial sectors permit a situation where two major players in the industry – to the exclusion of anyone else – get to appoint their own representatives onto the regulatory authority board?  It would be an outrage, even before the same authority goes on to barefacedly legislate (as it did in 2004) in favour of party ownership… when two of its board-members were actually representing the lucky owners themselves...

What makes the situation untenable, however, is the enormity of the financial advantage party-owned structures have over everybody else (and not just Lovin Malta) in the media industry. It is no coincidence that ‘advertising with One or Net’ has become the new way of financing political parties, over and above what is permitted by the Party Financial Law; and that this, too, has been condoned by an ineffectual Broadcasting Authority.

Nor is it a coincidence that the BA – while it still publishes regular reports gauging the viewership/audience share of all local TV and radio stations – stopped collating any data about advertising revenue, way back in 2004.

The last time this happened, the BA’s report found “significant disparities” between audience shares and the corresponding shares of advertising revenues for radio and TV stations.

“A station with an audience share of around 16 per cent manages to earn around 30 per cent of advertising revenues, while another station with double the audience share obtains only around 29 per cent of advertising revenues,” the Malta independent

The same story goes on to add: “Most people in the broadcasting industry privately point their finger at the political stations for taking such a large advertising share, but few dare say so in public…”

Well, that was the last time the BA did any investigating into the ratio of advertising to viewership. I wonder why? Could it be that someone was displeased that such a glaring contradiction – the equivalent of a business somehow posting record profits, while failing to attract any actual consumers – would be so openly spelt out in public?

And who could that be, I wonder… if not the people whose failed business is somehow permitted to keep afloat, for years upon years – even if, under any other private ownership structure, it would long have been liquidated as ‘bankrupt’ – to the detriment of others, competing in the same market, but without the additionally luxury of an undeserved revenue stream: coupled with exemptions on pretty much all major running expenses?

This, too, is what I suspect the authors of the 2017 Malta country report, by the Centre for Media Pluralism and Freedom, actually meant with the following observation:

“Cross-media concentration of ownership and competition enforcement scores a high risk [to media freedom] of 69%. This is mainly due to the lack of sector-specific legal provisions that would allow the competent authorities to enforce competition rules, and is due to the lack of data available to assess concentration of ownership across different media markets.”

And, separately, that: “there are no provisions that would allow the competent authorities to enforce competition rules in such a way that this takes account the specificities of the media sector.”

No, indeed. The political parties, which already own their own media, have also seen to it – during their separate stints in government – that their own stations should be carefully safeguarded from all relevant regulatory provisos: especially those intended to create a level-playing field or all operators in the media circuit.

This – and not the loftier human rights issues – is the only real legal argument against political party ownership in Malta; so it is the Competition And Consumer Affairs Authority – and not the Constitutional Court – where this case should be fought…  and won.

Other than that: best of luck with the legal campaign, folks. And remember to send us a postcard, when the verdict finally comes in (after around 200 or so years)…