Ofcom’s discussion document on media plurality and online news: Lessons for future regulatory interventions in the UK and beyond

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On 16 November, Ofcom published a discussion document on media plurality and online news. The discussion document sets out Ofcom’s understanding of the role that online platforms, such as social media, search engines and news aggregators, play in the UK news ecosystem. 

Ofcom’s discussion document focuses on hot (yet understudied) topics. Even though it is now widely acknowledged that platforms may significantly influence the range and quality of news that citizens see, policymakers have not sufficiently engaged with empirical research on (a) the role of platforms in the news value chain, and (b) how citizens consume news in a platform’s environment. The discussion document contributes to a better understanding of these issues as it is largely based on the News Consumption Survey, which Ofcom conducts on an annual basis.

The discussion document poses a series of questions to interested stakeholders in order to facilitate exchanges between Ofcom and the industry. Such exchanges are expected to inform the recommendations that Ofcom will make to the UK Government on the reform of the existing framework. In other words, it is likely that UK media regulation will be revised to take account of the impact of platforms on plurality. 

Though the discussion document and the News Consumption Survey clearly focus on the UK market, Ofcom’s findings are arguably relevant to other jurisdictions that have recently adopted or are in the process of designing regulation that seeks to promote media pluralism, notably the EU and its Member States. This blog post summarises Ofcom’s main findings and discusses how they can inform both regulation that is still in the making (e.g., the European Media Freedom Act) and the implementation of regulation that has already been adopted (e.g., the Digital Markets Act and national prominence rules). It also assesses Ofcom’s proposals for future regulatory interventions against the backdrop of consumption patterns in digital markets.

Before we take a closer look at the discussion document, it is worth noting that Ofcom’s work on media plurality remains important. Even though audiences can access immeasurably more information than they could in the analogue environment, the changes brought about by digital technologies have not rendered outdated the discussion over how media plurality can be effectively protected. On the contrary, alongside concerns that policymakers have attempted to address in the past, such as concentration of ownership and interference with editorial freedom, which are still relevant, new (and arguably more complex problems) have arisen. As Ofcom puts it:  

“[T]he sheer scale of options may be as overwhelming as they are informative, with trustworthy content fighting for space and attention alongside more sensationalist and unreliable material. As [online platforms] increasingly play the role of gatekeepers, curating or recommending news content to online audiences, it is not clear that people are aware of the choices being made on their behalf, or their impact.”

Put differently, the real question for media policymakers is not whether plurality still warrants protection, but whether the legal framework is appropriate to address the challenges posed by actors that have emerged in recent years, notably online platforms (see my work on this issue here).

Ofcom’s main findings concerning the effects of online platforms on media plurality 

A word of caution regarding the scope of Ofcom’s initiative is warranted. The discussion document focuses on the impact of online platforms as it is experienced by citizens. Ofcom has not analysed the effects of platforms on the editorial incentives of news publishers, for example in terms of the stories they cover. Moreover, Ofcom has not discussed the effects of online platforms on the sustainability of news production, that is, issues relating to competition in digital advertising markets and the bargaining relationship between platforms and news providers over payment for the provision of news content. This does not mean that the above issues are not key to ensuring media plurality (they are). However, Ofcom will likely focus on the former in the near futurewhereas the latter is expected to be dealt with under the upcoming Digital Markets Unit (“DMU”) regime.

Returning to the discussion document, Ofcom’s main findings can be briefly summarised as follows: 

Online platforms play an important role in the news supply chain

Newspaper publishers and broadcasters remain the creators of news content. However, social media platforms, search engines, and news aggregators play an important role in the curation, discovery and monetisation of news. 

In terms of consumption patterns, it is striking that one in seven people told Ofcom they now only use online sources for news, while Facebook has become the third most popular news source overall in the UK after the BBC and ITV.

There are concerns about the effects of online platforms, and in particular social media platforms, on media plurality 

Based on the data gathered by Ofcom, citizens that primarily rely on social media to access news content are less likely to (a) correctly identify important factual information; (b) feel more antipathy towards people that hold different political views (the so-call “echo chambers effect”) and (c) be less trusting of democratic institutions, than people that primarily use traditional media for news consumption. 

It is noteworthy that Ofcom found that these outcomes are not generally associated with the use of search engines or news aggregators, both of which are perceived by users to provide higher quality and more accurate news than social media. These findings are supported by research undertaken in other markets. 

People are not always clear about the extent to which online platforms influence the news they consume and why this is possible

Even if audiences value the variety of news content they find online, they usually do not know why certain stories are served to them. Notably, large numbers of people have very little understanding of the key role played by personalisation and the use of their data in the news they see. Some participants were discovering for the first time the nature and scale of personalisation on platforms during Ofcom’s focus groups. Moreover, when introduced to existing media plurality regulations participants were surprised (and concerned) that current plurality rules do not apply to platforms. 

Lessons for the future of plurality rules in the UK and beyond

Ofcom’s findings are aligned with the results of empirical research conducted elsewhere. In other words, the UK market is no different than others in terms of how online platforms influence the news value chain. The interesting part consists in Ofcom’s reflections on how its findings should inform regulatory initiatives. Those reflections are arguably relevant to other jurisdictions and markets. There are two issues that stand out in my view, namely the scope of media ownership restrictions and the options for future regulatory interventions. Those are discussed in more detail below.  

The scope of rules setting restrictions on media ownership: Lessons for the EU 

Ofcom acknowledges the limitations of UK media ownership rules. Those rules, which establish (a) restrictions on certain entities holding broadcast licences, and (b) a Public Interest Test enabling the Secretary of State to intervene in media mergers that meet certain thresholds, apply to “traditional” media. Ofcom notes with respect to the existing regime that: 

“if it is to remain effective, a regulatory framework must have sufficient tools to address new risks to media pluralityas they arise. […] [M]ore and more news is accessed via [platforms]. Further, […] although there are significant gaps in the evidence, we think there is a risk that certain online [platforms] may cause or facilitate political polarisation, give people a distorted range of viewpoints or expose them to harmful levels of misinformation.”

This should alert the EU legislator. I have already discussed in a previous post that the European Commission has recently proposed a European Media Freedom Act (“EMFA”), which would require Member States to establish substantive and procedural rules for assessing “media market concentrations” that could have a significant impact on media pluralism and editorial independence (Article 21). A key issue that arises from the proposal is the term “media market concentration”, which is defined as a concentration within the meaning of the EU Merger Regulation that involves “at least one media service provider” (Article 2(13)). In turn, the term “media service providers” does not cover platforms, which are distinguished from the former and which are subject to a different set of rules. As I have argued elsewhere, this approach fails to consider that platforms exercise editorial control over news content (by e.g., moderating, removing and ranking media content). Unless platforms are brought in the scope of anti-concentration rules, the EMFA will suffer from two significant drawbacks. First, it will not reflect market realities. In other words, it will not be capable of addressing the problem it seeks to remedy. Secondly, platforms will remain subject to horizontal merger control rules (and, to the extent they qualify as “gatekeepers”, a mere reporting obligation under the Digital Markets Act) whereas “traditional media” will be subject to strict anti-concentration rules. As a result, the EMFA will widen the regulatory asymmetries between media service providers and platforms. This can be expected to harm both competition and media pluralism. 

The solutions considered by Ofcom: Lessons for all

According to Ofcom, in addition to existing rules (e.g., ownership restrictions), there are other tools that could address harms to media plurality. Ofcom divides those tools into four broad categories: increasing transparency, empowering user choice, direct interventions to secure the maintenance of plurality, and sustainability of news providers. As already mentioned, Ofcom did not focus on matters relating to the sustainability of news providers. It did, however, explore a range of solutions falling under the other categories.

Starting from transparency, it is worth noting that Ofcom distinguishes between transparency vis-à-vis the public (including news publishers) and transparency vis-à-vis the regulator. With respect to the former, Ofcom notes that greater transparency over how online intermediaries deliver news content may help users make informed choices about where they get their news. For publishers, it will provide insight into how platforms’ systems affect the visibility and accessibility of their content. Establishing transparency rules to advance the understanding of how platforms influence news content cannot harm. But it is not likely to help either. 

A good example is the “privacy paradox” whereby users claim to care about their privacy, but their behaviour suggests otherwise (because they always agree to the privacy policies of the providers they use). Concretely, for consent to be compatible with the General Data Protection Regulation, it must be “informed” (Article 4(11)). Even where privacy policies are transparent enough to ensure that the consent that is extracted is informed, most users do not read them. In other words, transparency has not contributed greatly to users making informed decisions about how their data is processed. Even if users participating in Ofcom’s focus groupsstated that plurality should be protected, there is nothing to suggest that users will read the Terms and Conditions explaining that news served to them is personalised or that it is promoted in ways that limits choice. In other words, considering how users behave, there is likely a “plurality paradox” and, if we were to rely on transparency rules to solve the problem, the problem would remain unaddressed. 

As regards transparency vis-à-vis the regulator, Ofcom explores a range of solutions that could be used to assess the impact platforms have on media plurality. These include: analysis of aggregated usage and traffic data (e.g., detailed data about the amount of time users spend reading news, which would enable Ofcom to assess the importance of each platform in the news ecosystem and how different groups are impacted); analysis of individual user data, which would enable a more complete assessment of concerns around issues such as echo chambers, misinformation and algorithmic bias; algorithmic audits, which would enable Ofcom to determine, inter alia, whether there is an explicit bias within an algorithm or whether there is the scope for manipulation of ranking systems in a way which could be harmful to media plurality; and A/B testing (i.e., experiments which compare two versions of a service to evaluate which achieves a goal more effectively), which could be used to assess whether differences in choice architecture or recommender systems could affect outcomes such as the diversity of news that people are exposed to. 

These proposals are worth considering for two reasons. First, they are likely to be more effective compared to rules that would enhance transparency vis-à-vis the public. Contrary to users, a media regulator has a mandate to protect plurality. Secondly, having access to data about consumption patterns, online choice architecture, and algorithms would enable the regulator to tailor solutions to the (type of) platform under consideration. For example, one of the main conclusions drawn by Ofcom is that news aggregators are different from social media platforms because the former are perceived by users to provide higher quality and more accurate news than the latter. Of course, the solutions discussed above require sufficient financial resources and industry expertise. Ofcom may meet these conditions, but the same does not necessarily apply to smaller regulators in other parts of the world. 

In addition to transparency, Ofcom further discusses solutions empowering the user. Ofcom refers to customisation of recommendations (e.g., allowing users to easily change default settings, offering a choice of interoperable third-party recommender systems within their services so people are able to select the system that best suits them); customisation of choice architecture (e.g., varying how choices are presented to their users and periodically providing them with options about the overall design of their news feeds); and measures to promote conscious choice (e.g., flagging content identified as misinformation). 

Such measures could certainly prove useful, but only to a limited extent. This is because digital markets, including digital media markets, suffer from user stickiness and customer inertia. This was examined, inter alia, in the Google Android decision (recently upheld by the General Court of the EU) and the Impact Assessment for the DMA. Based on the results of the research it conducted, Ofcom itself notes that some respondents said that they did not want increased choice and that they do not always make use of the control they already have. Put differently, relying on measures that seek to empower the user in order to protect plurality is unlikely to suffice. 

Ofcom appears to acknowledge that transparency rules and measures to empower user choice are not likely to address harms to pluralism, which is why it explores a further class of interventions that would be based on a more prescriptive approach to the news that users (should) see. Those interventions include prominence rules, which are not new to media regulation. Prominence rules are arguably more complex in the online sphere (e.g., how does one determine what information is in the general interest in a digital environment?). Howver, several EU Member States (e.g., Germany, Italy, France) have recently revised their framework to ensure that prominence obligations are imposed on platforms. Though it may be early days to assess the adequacy of each national initiative to promote pluralism, prominence regulation may be one way forward if we agree that transparency and empowering the user are simply not enough to prevent platforms from engaging in practices that are harmful to media plurality. 

Conclusions 

Protecting and promoting media plurality in online markets is far from an easy task. To determine what news users (should) consume, complex methodological questions arise (e.g., how can we define “trusted news”? How can we calculate shares of consumption?). Ofcom is certainly asking (and attempting to answer) these difficult questions through empirical work. Other regulators should follow suit. 

What is clear is that the measures examined in Ofcom’s document should go hand in hand with those that will be established under the DMU regime, which will seek to address, inter alia, the imbalances in bargaining power between platforms and news providers and level the playing field in digital advertising markets. 

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