NZME LIMITED v FAIRFAX MEDIA LIMITED [2017] NZHC 3206

NZME LIMITED v FAIRFAX MEDIA LIMITED [2017] NZHC 3206

The Court dismissed the appeals, upholding the Commission's findings of likely SLCs in specified reader and community newspaper markets, rejecting the likelihood of an advertising-market SLC for Sunday newspapers and the likelihood of a post-merger paywall, and holding the Commission lawfully could and properly did take into account media plurality and reduced quality as material detriments such that authorisation could not be justified because public benefits were insufficient.

Citation
[2017] NZHC 3206
Parties
First Appellant: NZME Limited; Second Appellant: Fairfax Media Limited; Third Appellant: Fairfax New Zealand Limited; Respondent: Commerce Commission
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 December 2017
Procedural Posture
Appeal Against Commerce Commission Merger Clearance and Authorisation Decision / Judgment Delivered After Hearing (16–20 Oct, 24–27 Oct 2017)
Outcome
Appeals dismissed; Commerce Commission decisions upheld; costs awarded to the Commerce Commission
Legal Topics
Merger Clearance, Authorisation, Substantial Lessening of Competition (slc), Media Plurality, Public Benefits and Detriments, Procedural Fairness, Paywall Impact
Competition Law Media Law Administrative Law Merger Clearance Authorisation Substantial Lessening of Competition (slc) Media Plurality Public Benefits and Detriments +2 more

Case Brief

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Parties

NZME Limited

First Appellant

Fairfax Media Limited

Second Appellant

Fairfax New Zealand Limited

Third Appellant

Commerce Commission

Respondent

Procedural Posture

Appeal Against Commerce Commission Merger Clearance and Authorisation Decision / Judgment Delivered After Hearing (16–20 Oct, 24–27 Oct 2017)

Legal Issues

  1. 1 Whether the proposed merger would result in a substantial lessening of competition (SLC) in the advertising market for Sunday newspapers
  2. 2 Whether the proposed merger would result in an SLC in reader markets for online national news, Sunday newspapers and community newspapers in specified areas
  3. 3 Whether an appellant was likely to introduce a paywall post-merger and its competitive impact

Ratio Decidendi

The Court dismissed the appeals, upholding the Commission's findings of likely SLCs in specified reader and community newspaper markets, rejecting the likelihood of an advertising-market SLC for Sunday newspapers and the likelihood of a post-merger paywall, and holding the Commission lawfully could and properly did take into account media plurality and reduced quality as material detriments such that authorisation could not be justified because public benefits were insufficient.

Court Disposition

Appeals dismissed; Commerce Commission decisions upheld; costs awarded to the Commerce Commission

Orders

  • Appeals dismissed
  • Commerce Commission's clearance and refusal to authorise the proposed merger upheld