Decision of December 14, 2022 giving formal notice to Eutelsat SA
The French regulatory authority for audiovisual and digital communication,
Having regard to the European Convention on Transfrontier Television of May 5, 1989, in particular articles 3, 5 and 7;
Having regard to Act no. 86-1067 of September 30, 1986 as amended relating to freedom of communication, in particular articles 1, 3-1, 15, 42 and 43-6 ;
Having regard to order no. 468969 of the Conseil d'Etat interim relief judge of December 9, 2022;
Vu le compte rendu de visionnage de programmes du service de télévision " Rossiya 1 " diffusés le 27 février, les 1er, 4, 5, 14, 15, 23 et 26 avril, les 24 et 30 mai et les 13 et 26 juillet 2022, traduits en langue française ;
Vu le compte rendu de visionnage de programmes du service de télévision " Perviy Kanal " diffusés les 3, 4, 5, 11 et 12 avril, le 26 mai et le 13 septembre 2022, traduits en langue française ;
Vu le compte rendu de visionnage de programmes du service de télévision " NTV " diffusés les 3, 5 et 21 avril et les 1er et 4 septembre 2022, traduits en langue française ;
Considering the following:
On the legal manager:
1 Firstly, under the provisions of article 43-6 of the above-mentioned Act of September 30, 1986: " This Act applies to television services whose publisher falls within the competence of France, in accordance with the criteria laid down by the European Convention of May 5, 1989, on Transfrontier Television, and received by States party to this Convention which are not members of the European Community. "
2. Secondly, under the provisions of Article 3 of the European Convention on Transfrontier Television referred to above: " This Convention applies to any program service which is transmitted or retransmitted by bodies or with the aid of technical means falling within the competence of a Party, whether by cable, terrestrial transmitter or satellite, and which may be received, directly or indirectly, in one or more other Parties. " Under the provisions of Article 5 of the same Convention: " 1. Each transmitting Party shall ensure that all program services transmitted by a broadcaster falling within the competence of that Party comply with the provisions of this Convention. 2. For the purposes of this Convention, fall within the competence of a Party the broadcaster: - which is deemed to be established in that Party in accordance with paragraph 3; - to which paragraph 4 applies. (...) 4. A broadcaster to which paragraph 3 does not apply shall be deemed to fall within the competence of the transmitting Party in the following cases: (...) b if, not using a frequency granted by a Party, it uses satellite capacity falling within the competence of that Party; (...). "
3. Thirdly, under the provisions of Article 7 of the same Convention: " 1- All programme service elements, in their presentation and content, shall respect human dignity and the fundamental rights of others. In particular, they shall not: (...) b. Promote violence or be likely to incite racial hatred. (...) 3- The broadcaster shall ensure that news broadcasts fairly present facts and events and encourage the free formation of opinions. "
4. Respect for the principles set out in this agreement and abided by above is also guaranteed by the law of September 30, 1986. Indeed, under the provisions of the third paragraph of article 3-1 of this law, " the French regulatory authority for audiovisual and digital communication guarantees the honesty, independence and plurality of information and the programs that contribute to it, subject to article 1 of [this] law", by virtue of which "Communication to the public by electronic means is free. The exercise of this freedom may be limited only to the extent required, on the one hand, by respect for the dignity of the human person, the freedom and property of others, the plurality of expression of currents of thought and opinion and, on the other hand, by the protection of children and adolescents, by the safeguarding of public order [...] ".
5. Furthermore, under the provisions of article 15 of the same law, the Authority ensures that programs made available to the public by an audiovisual communication service do not contain any incitement to hatred or violence based on any of the grounds referred to in article 21 of the Charter of Fundamental Rights of the European Union, including nationality.
6. Lastly, under the provisions of article 42 of the same law, the French regulatory authority for audiovisual and digital communication can give formal notice to satellite network operators " to abide by the obligations imposed on them by legislative and regulatory texts and by the principles defined in articles 1 and 3-1 ". In Eutelsat order no. 277736 of March 3, 2005, the Conseil d'Etat's interim relief judge ruled: " That it is (...) [the French regulatory authority for audiovisual and digital communication] to use the powers conferred on it by law to ensure the effective application of the principles it has set out and, in particular, to take the appropriate measures to ensure that the transport and diffusion of any program containing incitement to hatred or violence on grounds of race, sex, morality, religion or nationality ceases as soon as possible ; that [it] may, to this end, issue a formal notice to satellite network operators on the basis of article 42 of the law of September 30, 1986. "
On the jurisdiction of the French regulatory authority for audiovisual and digital communication:
7. It is clear from the investigation that the TV channels "Rossiya 1", "Perviy Kanal" and "NTV", published by Russian companies and distributed in the "NTV+" and "Trikolor" pay channel packages on Eutelsat SA satellite capacity, which are neither accessible free-to-air nor marketed on the territory of the European Union, are distributed and shown in the Ukrainian territories annexed by Russia in 2014 and 2022. Since these channels are shown in Ukraine, a State party to the May 5, 1989 agreement referred to above, by means of satellite capacity falling within the competence of France, the French regulatory authority for audiovisual and digital communication is competent, in application of the aforementioned provisions of article 43-6 of the September 30, 1986 law and the aforementioned stipulations of article 5 of the agreement, to ensure that these services abide by the obligations and principles laid down by this agreement, which are also included in the September 30, 1986 law.
On programmes shown on "Rossiya 1" on February 27, April 1, 4, 5, 14, 15, 23 and 26, May 24 and 30 and July 13 and 26, 2022:
Regarding the obligation not to incite hatred and violence:
8. It emerges from the broadcast account of the "Rossiya 1" television service that it repeatedly presents not only the Ukrainian leaders and the Ukrainian army, but also, and above all, the Ukrainian population, as adhering to the Nazi ideology of the Third Reich and thus representing an extreme danger.
9. Thus, in a news programme shown on April 26, 2022, a person on set presented as a political scientist explained that no one has ever spoken Ukrainian and that thus " even the Nazis speak Russian among themselves ". On May 30, 2022, an on-air speaker declared that two million people in Ukraine " want to reinstate the SS " and that these two million people must " leave Ukraine, or be denazified, i.e. eliminated ".
10. In addition, the Ukrainian president and his government are presented in a particularly disparaging light. On July 13, 2022, it was stated that Russia's main objective was " the elimination of Zelensky's Nazi government ", which would organize the "genocide of its own people". On July 26, 2022, the Ukrainian president was described as an " international terrorist, heir to Bandera ", capable of " sending his assassins ".
11. Finally, during a news programme on April 15, 2022, the very existence of the Ukrainian nation was denied, to be reduced to the rank of a mere "idea", which it would be necessary to eliminate because it had been "poisoning" the Slavic people for 100 years. According to one journalist, the very name Ukrainian is an " insult ".
12. These remarks thus convey a particularly disturbing and threatening image of the Ukrainian population as a whole, likely to incite hatred towards them on the grounds of their nationality, in the context of the war against Ukraine.
13. Furthermore, it is clear from the broadcast report that the Russian strategy of military strikes targeting Ukrainian decision-making centers and the people who work there, but also the civilian population, is presented as not only legitimate but as needing to be strengthened.
14. Thus, in a news programme shown on April 14, 2022, it was stated, among other things, that if Ukrainian "person under 18" provocations on Russian territory continued, Russia should attack the Ukrainian decision-making center in Kiev: " We could start, for example, by destroying the government quarter, the Ukrainian Ministry of Defense building, Zelensky's office and the SBU's main directorate". On April 26, 2022, it is also stated that when the "criminal regime in Kiev is wiped off the face of the earth, harmony will return, there will be international trade again. "
15. Furthermore, on April 23, 2022, a journalist suggested concreting over the exits and entrances to the Azovstal factory in Marioupol, where Ukrainian civilians and soldiers had taken refuge, arguing that there was no reason to feel any " sense of humanism ". According to the same journalist, there was no longer any point in trying to please foreigners and, as far as the refugees in the factory were concerned, they should be " put in a cage [...], shown in the public square [...], let people do what they want to them ". These sequences tend to legitimize the use of violence against the Ukrainian population and are thus likely to incite violence against them on grounds of nationality.
16. Consequently, the diffusion of all the sequences in question constitutes a breach of article 15 of the law of September 30, 1986 and the first paragraph of article 7 of the convention of May 5, 1989. This breach is all the more serious in that it occurs in the context of a military invasion of Ukraine by the Russian Federation, which began on February 24, 2022.
With regard to the obligation to provide honest information :
17. It is clear from the record of the broadcast of the "Rossiya 1" television service that a number of serious and unsubstantiated allegations, feeding the springs of Russian propaganda, were shown in order, in particular, to legitimize the war in Ukraine.
18. For example, various statements were made to the effect that only military sites had been targeted by the Russian strikes, and not civilian sites. On February 27, 2022, it was stated that: " There is false information about Ukrainian cities being hit. This is not the case. Only military sites are being destroyed. Our attitude towards civilians and cities is very cautious. The aim of Russia's special operation in Ukraine is to prevent world war. And Russia's actions are inherently anti-war. Moreover, on April 1, 2022, a journalist reported: " Have we bombed a single housing block?! Just one?! These are all army sites! What the hell have you bastards done to Donetsk's residential district?! "
19. Furthermore, on the subject of the Boutcha massacre, a news programme on April 4, 2022, stated: " The West is using Boutcha to legalize future purges in areas previously occupied by the Russian army. People were killed by Ukrainian forces because they didn't resist the Russians. The West is thus giving Ukraine permission to extrajudicially kill those they consider traitors ".
20. Finally, the war in Ukraine is presented as a civil war between Russians, which amounts to denying the very existence of the Ukrainian nation. On April 5, 2022, a journalist pointed out that although Ukrainians consider themselves Ukrainians, they are within the scope of Russia for the West, because "[Westerners] can't spell the word Ukrainian", and " the West doesn't know the difference: we are all Russians ". On May 24, 2022, in a news programme, another journalist claimed that Ukrainians were Russians, that the Ukrainian language didn't exist, that it was all an " invention ". He also claimed that " despite what people say in the West, Russian soldiers are welcomed in Ukraine with flowers. [...] And the explanation is easy: it's a Russian people waiting to be freed from the Nazi Zelensky regime ". Finally, on May 30, 2022, it is stated on air that " unfortunately, this war is a civil war" and that "Russians are fighting Russians ".
21. The repeated diffusion, in a context of war, of erroneous, decontextualized and biased information, not based on any reliable source of information, constitutes a particularly serious breach of the obligation to ensure the honesty of information.
22. Consequently, the diffusion of such information constitutes a breach of the third paragraph of article 3-1 of the law of September 30, 1986 and of the third paragraph of article 7 of the agreement of May 5, 1989.
23. Consequently, the diffusion by Eutelsat SA of the television service "Rossiya 1" seriously infringes articles 3-1 and 15 of the law of September 30, 1986 and paragraphs 1 and 3 of article 7 of the agreement of May 5, 1989. The company should therefore be served with this formal notice to cease broadcasting the "Rossiya 1" service.
On broadcasts shown on "Perviy Kanal" on April 3, 4, 5, 11 and 12, May 26 and September 13, 2022:
Regarding the obligation not to incite hatred and violence:
24. It is clear from the broadcast account of the "Perviy Kanal" television service that it repeatedly presents the Ukrainian population as adhering to the Nazi ideology of the Third Reich and as thus representing an extreme danger, in particular for Russia.
25. On April 4, 2022, for example, it was stated on air that, for the Ukrainians, " after having staged the Boutcha massacre, the next step will be a novitchok gas attack in a European metro", and then on April 12, 2022, that Ukraine had been "doped with biological weapons " by the United States and that the West was trying to "defend us for using chemical weapons". Furthermore, in a news programme shown on April 11, 2022, Ukraine was presented as a terrorist state representing a " very great threat " to Russia's borders. Finally, in another news programme shown on May 26, 2022, the news female presenter stated, " Neo-Nazis used civilians as human shields and turned inhabited neighborhoods into fighting positions. "
26. These remarks thus convey a particularly disturbing and threatening image of the Ukrainian population as a whole, likely to incite hatred and violence against them on grounds of nationality.
27. Consequently, the diffusion of all the sequences in question constitutes a breach of article 15 of the law of September 30, 1986 and the first paragraph of article 7 of the convention of May 5, 1989. This breach is all the more serious in that it occurs in the context of a military invasion of Ukraine by the Russian Federation, which began on February 24, 2022.
With regard to the obligation to provide honest information :
28. It emerges from the broadcast account of the "Perviy Kanal" television service that a number of serious and unsubstantiated allegations, feeding the springs of Russian propaganda, were shown in order, in particular, to lead people to believe in the presence of NATO forces in Ukraine, in the involvement of the United States in the outbreak of the Russian-Ukrainian conflict and in placing responsibility for the Boutcha massacre on the Ukrainians.
29. Thus, with regard to the massacre that took place in the town of Boutcha, it was presented as a given that this massacre was the work of Ukrainian forces. On April 3, 2022, the TV news reported that " Kiev is doing everything it can to discredit our soldiers. Here are the official images that the Ukrainian Ministry of Defense [images of a city in ruins are shown. 4x4s can be seen criss-crossing the streets, lifeless bodies lying on the ground] sent to the Western media. Filmed at Boutcha in the Kiev region, they supposedly provide evidence that Russian forces were killing civilians en masse. But on closer inspection, it becomes clear that this is yet another fake. The images are staged. We see a person supposedly killed [the images are replayed in slow motion. An inanimate body is surrounded by a red circle on the screen] raises his arm. Another stands up, as soon as the vehicle with the cameraman has passed her. " Furthermore, the following day, in a news programme, it was mentioned that the city of Boutcha had been chosen by the West because the name of this city resembles the English word " butcher ". Finally, on April 5, 2022, it was stated: " It is absolutely clear that the situation in Boutcha has been orchestrated by the United States of America. My dear colleagues, the United States will wage war in Ukraine to the last Ukrainian; there will be many more Butchas and many more Marioupol maternities. "
30. Furthermore, in the "Time will tell" news programme shown on September 13, 2022, it was stated that NATO headquarters were in the Kramatorsk region, that NATO officers were present on Ukrainian soil, or that the " masks have fallen off, NATO soldiers are no longer even hiding and are present on Ukrainian soil. In addition to the American language, we also hear the language of the Baltic states ".
31. Finally, it was argued in the same broadcast that the United States is at war with Russia, with the aim of " humiliating and demilitarizing Russia " and " invading Russian territories ".
32. The repeated diffusion, in a context of war, of information that is erroneous, decontextualized, biased and not based on any reliable source of information, constitutes a particularly serious breach of the obligation to ensure the honesty of information.
33. Consequently, the diffusion of such information constitutes a breach of the third paragraph of article 3-1 of the law of September 30, 1986 and of the third paragraph of article 7 of the agreement of May 5, 1989.
34. Consequently, the diffusion by Eutelsat SA of the television service "Perviy Kanal" seriously infringes articles 3-1 and 15 of the law of September 30, 1986 and paragraphs 1 and 3 of article 7 of the agreement of May 5, 1989. The company should therefore be served with this formal notice to cease broadcasting the "Perviy Kanal" service.
On programmes shown on "NTV" on April 3, 5 and 21 and September 1 and 4, 2022:
Concerning the obligation not to incite hatred and violence:
35. It emerges from the broadcast report that the "NTV" service repeatedly presents the Ukrainian language as hateful and dangerous and conveys the idea that the use of violence against Ukrainians is legitimate and should be strengthened.
36. Thus, during a broadcast on September 4, 2022, devoted in part to the dangers represented by the teaching of the Ukrainian language in the Ukrainian territories occupied by Russia (presented in the broadcast as " liberated "), the speakers asserted that the Ukrainian language would convey " anti-Russian " and " enemy " content and that its teaching should therefore be banned. An excerpt from a lecture given by a Russian film and stage director was shown, in which he asserted: " The Ukrainian language has become a vector of Russophobia, [...] the phrases you hear in Ukrainian are phrases that allow you to formulate hatred towards Russia. " In his opinion, teaching subjects in Ukrainian would be a " catastrophe ". The alleged danger of the Ukrainian language was also emphasized by those on set: " But of course it [teaching Ukrainian] represents a danger. " One speaker added, on the same program, that when you learn a language, " you have to read content, which in this case has been written by Kiev ", and so you end up "absorbing enemy, anti-Russian content". The only attempt at contradiction made by one speaker was vehemently dismissed by the others on set, and the program's female presenter closed the debate as follows: " Boris Nadezhdin [person who made an attempt at contradiction], do you understand Russian? Then shut down. "
37. These remarks, repeatedly presenting the Ukrainian language as hateful and dangerous, convey the image of a threatening and dangerous Ukrainian population. This sequence is thus likely to give rise to a feeling of violence towards the Ukrainian population and consequently constitutes incitement to hatred on grounds of nationality.
38. In addition, during a broadcast on September 1, 2022, the question of the effectiveness or ineffectiveness of having members of the Ukrainian security services assassinated was discussed. During another program shown on the same day, a speaker on set asserted that " liberal scum ", also referred to as " bastards ", should be eliminated, before concluding his intervention by quoting Joseph Stalin (" No men, no problems. Death solves all problems ") and declaring that all enemies of the Nation should be eliminated (" first we must kill them and then we'll bury them in mass graves ").
39. These repeated and extremely violent statements, aimed in particular at the Ukrainian security services and more broadly at Russia's enemies, which must be understood in the context of the war against Ukraine as aimed in particular at Ukrainians, tend to defend the idea that the violence exercised against the latter is legitimate, necessary and should be further strengthened. Consequently, the diffusion of such statements is likely to incite violence on the grounds of nationality.
40 Consequently, the diffusion of all the sequences in question constitutes a breach of article 15 of the law of September 30, 1986 and of the first paragraph of article 7 of the convention of May 5, 1989. This breach is all the more serious in that it occurred in the context of the military invasion of Ukraine by the Russian Federation, which began on February 24, 2022.
With regard to the obligation to provide honest information :
41.it is clear from the record of the broadcast of the "NTV" television service that several serious and unfounded allegations, feeding the springs of Russian propaganda, were shown in order to legitimize the war in Ukraine and minimize Russia's responsibility in the current events.
42 During a show broadcast on April 3, 2022, the Boutcha massacre was presented as a " version " supplied by Kiev. On April 5, 2022, a sequence was shown in which the voice-over described the Boutcha massacre as a " staged event", in which bodies were " supposedly " bathed in blood. According to the journalist, " that's not possible, because it's already been four days since they were killed ". He added that what we're seeing are either " actors misplaying the dead ", or "bodies that have been picked up from all over Ukraine". These sequences, which tend to deny the very existence of the Boutcha massacre, and are not based on any verified evidence, amount to speculation designed to feed pro-Russian propaganda.
43 Furthermore, on April 21, 2022, a sequence was shown in which the female presenter spoke of the peaceful climate in Kherson, a Ukrainian city that was then occupied by Russia. This statement was illustrated by images of children playing in a park. It emerged from the investigation that the images shown on the screen corresponded to those of the Russian town of Yeysk. This sequence therefore misrepresented the situation in the town of Kherson, using inappropriate images.
44 Finally, during a show broadcast on September 4, 2022 devoted to the Ukrainian language, speakers claimed that the populations of Russian-occupied Ukrainian territories, presented as " liberated ", did not wish to speak Ukrainian under any circumstances. One speaker asserted that he was certain that the children in these territories spoke Russian: " [...] Russian is the mother tongue of Ukrainians, [...] Ukrainian is merely an attribute, a means of saying: I am not Russian. " Another person said, " But people don't want to study in Ukrainian [...] there's no demand to learn Ukrainian." Yet the Ukrainian language remains the country's official language. Thus, to reduce the Ukrainian language to an act of anti-Russian dissidence and to assert that the Ukrainian population of the occupied territories, as a whole, does not wish to speak it, is manifestly erroneous.
45 The repeated diffusion, in a context of war, of information that is erroneous, decontextualized, biased and not based on any reliable source of information, constitutes a particularly serious breach of the obligation to provide honest information.
46 Consequently, the diffusion of such information constitutes a breach of the third paragraph of article 3-1 of the law of September 30, 1986 and of the third paragraph of article 7 of the agreement of May 5, 1989.
47 Consequently, the diffusion by Eutelsat SA of the television service "NTV" seriously infringes articles 3-1 and 15 of the law of September 30, 1986 and paragraphs 1 and 3 of article 7 of the agreement of May 5, 1989. It is therefore appropriate to send this company formal notice to cease broadcasting the "NTV" service.
After deliberation,
Decides :
Art. 1. - Eutelsat SA is hereby ordered to cease broadcasting the "Rossiya 1", "Perviy Kanal" and "NTV" services within 7 days of notification of this decision.
Art. 2 - The present decision will be notified to Eutelsat SA and published in the Journal officiel de la République française.
Paris, December 14, 2022.
Decision no. 2022-763 of December 14, 2022 giving formal notice to Eutelsat SA
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