Decision of December 20, 2023 giving formal notice to Eutelsat SA

The French regulatory authority for audiovisual and digital communication,

Having regard to the Convention of July 15, 1982 establishing the European Telecommunications Satellite Organization (Eutelsat), in the version resulting from the amendments adopted in Cardiff on May 20, 1999, published in the Journal officiel of June 9, 2001;

Having regard to Council Regulation (EC) No 2580/2001 of December 27, 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and Council Implementing Regulation (EU) No 2023/1505 of July 20, 2023 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism;

Having regard to Act no. 86-1067 of September 30, 1986, as amended, on freedom of communication, in particular articles 1, 15, 33-1, 42, 43-2 and 43-4;

Considering the following:

On the legal manager:

1. Article III of the above-mentioned agreement of July 15, 1982 stipulates that Eutelsat SA is subject to the following obligation: "as regards audiovisual services and future services, they shall be offered in compliance with national regulations [...]".

2. Under the provisions of article 43-4 of the aforementioned law of September 30, 1986: "television service editors [...] fall within the competence of France if they satisfy one of the following conditions: 1° If they use an uplink to a satellite, from a station located in France; 2° If, not using an uplink from a station located in another Member State of the European Community or in another State party to the Agreement on the European Economic Area, they use satellite capacity under French jurisdiction."

3. By virtue of article 33-1 III of the same law, television services falling within the competence of France under articles 43-4 and 43-5 of the same law are subject to the obligations resulting from this law and to the control of the French regulatory authority for audiovisual and digital communication. Under the provisions of article 1 of the same law, "Communication to the public by electronic means is free. The exercise of this freedom may only be limited to the extent required, on the one hand, by respect for human dignity, (...) and, on the other hand, (...) by the protection of public order [...]". Under the provisions of article 15 of the same law: "It shall also ensure that programs made available to the public by an audiovisual communication service do not contain: 1° Incitement to hatred or violence based on one of the grounds referred to in article 21 of the Charter of Fundamental Rights of the European Union or because of gender identity; 2° Public provocation to commit the infringements mentioned in articles 421-2-5 and 421-2-5-1 of the French Penal Code".

4. Under the terms 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]'s responsibility 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 appropriate measures to ensure that the transport and diffusion of any program containing incitement to hatred or violence on grounds of race, sex, morals, 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 diffusion of the "Al Aqsa" service

5. The Al Aqsa television service, which was shown on the Eutelsat 8 West B satellite covering southern Europe, is a TV channel with proven links to Hamas. In decision no. 2010-460 of June 8, 2010, the French Superior Audiovisual Council found that some of the channel's programs were militantly anti-Semitic. The Conseil considered that their diffusion constituted a breach of articles 1 and 15 of the law of September 30, 1986, in that these programs undermined human dignity and were likely to incite hatred or violence on grounds of religion or nationality. Consequently, it issued a formal notice to Eutelsat to cease broadcasting the service.

6. The current hostilities in the Middle East, following the attacks committed by members of Hamas on Israeli territory on October 7, 2023, have led to an increase in tensions within the European Union, resulting in an increase in anti-Semitic acts.

7. Implementing Article 2(3) of the above-mentioned Regulation no. 2580/2001 of December 27, 2001, the Council of the European Union adopted Implementing Regulation no. 2023/1505 of July 20, 2023, which continues to list Hamas as an organization subject to specific restrictive measures in the fight agains terrorism.

8. It must therefore be considered that the diffusion of a service with proven links to Hamas, an organization included on the list of those subject to specific restrictive measures in the fight against terrorism by the above-mentioned Council implementing regulation of July 20, 2023, seriously undermines public order and human dignity and is contrary to the provisions of articles 1 and 15 of the law of September 30, 1986.

9. Having noted that the channel was once again being shown, Eutelsat obtained its withdrawal from the technical distributor concerned on October 16, 2023. In a press release dated the same day and sent to Agence France Presse, Eutelsat stated: "This channel was shown as part of a channel package by a partner distributor in the Eutelsat 8 West B coverage area, which includes North Africa, the Middle East and a small part of Southern Europe. Eutelsat was not directly responsible for its diffusion" [...] "The channel appeared under a different name in the list of channels in this channel package, even though its image was Al Aqsa".

10. Generally speaking, it is the responsibility of all satellite network operators under French jurisdiction to ensure that the application of diffusion contracts is strictly subordinated to compliance by the television services transported with the rules and principles set out in legislative provisions, such as the prohibition in programs of any incitement to hatred or violence for reasons of race, religion or nationality. The future diffusion of this channel would be likely to seriously infringe the provisions of articles 1 and 15 of the law of September 30, 1986.

11. Eutelsat should therefore be given formal notice to ensure that it does not show the Al Aqsa service in the future.

On the diffusion of the "Yarmouk 2 TV" service, also known as "Al Aqsa live".

12. The Yarmouk 2 TV service, renamed Al Aqsa live, has been shown on the Al Aqsa signal by Eutelsat since October 17, 2023.

13. It is clear from the broadcasts that the Yarmouk 2 TV service uses, at least in part, the look and feel of the Al Aqsa service, which is currently broadcast on other satellites and does not fall within the competence of France, and that the content broadcast on Yarmouk 2 TV is broadcast almost simultaneously on the Al Aqsa service. The scrolling banners at the bottom of the screen and the urgent banners are also identical. Despite a few distinct design elements, the Yarmouk 2 TV service uses the same content as the Al Aqsa service.

14. In view of the foregoing, Eutelsat should be given formal notice to cease broadcasting the Yarmouk 2 TV service, also known as Al Aqsa live.

After deliberation,

Decides :

Art. 1. - Eutelsat SA is ordered to ensure that it does not show the Al Aqsa service in the future.

Art. 2 - Eutelsat SA is hereby ordered to cease broadcasting the Yarmouk 2 TV service, also known as Al Aqsa live, within 48 hours of notification of this decision.

Art. 3 - The present decision will be notified to Eutelsat SA and published in the Journal officiel de la République française.

Paris, December 20, 2023.

For the French regulatory authority for audiovisual and digital communication

Chairman,

R.-O. MAISTRE