Decision of February 9, 2023 imposing a financial penalty on C8

The French regulatory authority for audiovisual and digital communication,

Having regard to Act no. 86-1067 of September 30, 1986, as amended, on freedom of communication, in particular articles 28, 42-1, 42-2 and 42-7 ;

Vu le décret n° 2013-1196 du 19 décembre 2013 modifié relatif à la procédure de sanction mise en œuvre par l'Autorité de régulation de la communication audiovisuelle et numérique en application de l'article 42-7 de la loi n° 86-1067 du 30 septembre 1986 relative à la liberté de communication ;

Having regard to decision no. 2003-309 of June 10, 2003, amended and extended, authorizing Bolloré Media, now Direct 8 and then C8, to use a radioelectric resource to operate a national television service broadcast free-to-air by terrestrial hertzian means in digital mode called C8, and decision no. 2019-214 of May 29, 2019 renewing this authorization;

Having regard to the agreement entered into between the French Superior Audiovisual Council and C8 on May 29, 2019 concerning the C8 television service, in particular articles 2-2-1, 2-3-4, 4-2-2 and 4-2- 4 ;

Having regard to decision no. 2010-196 of March 30, 2010 giving formal notice to Bolloré Média ;

Having regard to decision no. 2015-274 of July 1, 2015 giving formal notice to the company D8 ;

Having regard to decision no. 2017-532 of July 26, 2017 imposing legal sanctions on the company C8 ;

Having regard to the decision not published in the Journal officiel of December 18, 2019 imposing a financial penalty on the company C8;

Having regard to the broadcast elements of the program "Touche pas à mon poste" shown on November 10 and 14, 2022 on the C8 television service;

Having regard to the letter dated November 24, 2022 from the rapporteur referred to in article 42-7 of the Act of September 30, 1986, notifying C8 of the decision to initiate legal sanctions proceedings against it and inviting it to present its observations within a period of one month;

Having regard to the e-mail of November 30, 2022 by which company C8 requested communication of the documents in the file, which were sent to it by the Director General of the French regulatory authority for audiovisual and digital communication by letters of December 2, 2022 and January 4, 2023;

Having regard to the observations of C8 sent by e-mail on January 4, 2023 and the additional documents sent subsequently;

Having regard to the report drawn up by the rapporteur and communicated to société C8, its counsel and the chairman of the French regulatory authority for audiovisual and digital communication by letters dated January 17, 2023;

Having regard to the decision of January 23, 2023 by which the French regulatory authority for audiovisual and digital communication decided not to make use of the option it holds under article 42-7, 6° of the law of September 30, 1986;

Having regard to the e-mail of February 1, 2023 in which C8 declined to make public the hearing of February 8, 2023 before the French regulatory authority for audiovisual and digital communication, in response to the latter's letter of January 19, 2023;

Having regard to the other documents in the file;

At the meeting of February 8, 2023, the Authority heard the rapporteur as well as Mr. Gerald-Brice Viret, Managing Director of Canal + France in charge of antennas and programs, Mr. Franck Appietto, President of C8, Ms. Laetitia Ménasé, General Secretary, Ms. Samira Bouabida, Head of Program Compliance at C8, Mr. Olivier Chappuis and Mr. Emmanuel Glaser.

Considering the following:

On the legal manager:

1. Firstly, according to article 4-2-2 of the May 29, 2019 agreement: "If the publisher does not comply with a formal notice, [the French regulatory authority for audiovisual and digital communication] may, under the conditions provided for in article 42-1 of the amended Act of September 30, 1986, impose one of the following legal sanctions against the publisher: 1. a financial penalty, under the conditions provided for in article 42-2 of the amended Act of September 30, 1986 [...]." Article 4-2-4 of the same agreement makes provision for: "The contractual penalties referred to in articles 4-2-2 and 4-2-3 shall be imposed by [the French regulatory authority for audiovisual and digital communication] in compliance with the guarantees set out in articles 42 et seq. of the amended September 30, 1986 law." Article 42-2 of the law of September 30, 1986 stipulates that: "The amount of the financial penalty must be commensurate with the seriousness of the breaches committed and in relation to the benefits derived from the breach, and may not exceed 3% of pre-tax sales in the last financial year ended, calculated over a twelve-month period. This maximum is raised to 5% in the event of a further infringement of the same obligation.

2. Secondly, under the provisions of article 2-3-4 of the May 29, 2019 agreement, the publisher "abides by the rights of the individual relating to privacy, image, honor and reputation as defined by law and case law".

3. Thirdly, under the provisions of article 2-2-1 of the same agreement: "The publisher is responsible for the content of the programs it shows. It retains control of its broadcasting under all circumstances".

4. Fourthly, in a decision dated March 30, 2010, Bolloré Média, which became D8 and then C8, was given formal notice to comply, in particular, with the stipulations of article 2-3-4 of the June 10, 2003 agreement relating to human rights [now article 2-3-4 of the May 29, 2019 agreement]. Furthermore, in a decision dated July 1, 2015, D8, now C8, was given formal notice to comply, in particular, with the stipulations of article 2-2-1 of the June 10, 2003 agreement relating to control of the airwaves [now article 2-2-1 of the May 29, 2019 agreement].

5. Lastly, in a decision dated July 26, 2017, C8 was sanctioned for failing to comply with the stipulations of article 2-3-4 of its agreement. Furthermore, in a decision dated December 18, 2019, C8 was sanctioned for breaches of articles 2-2-1 and 2-3-4 of its agreement.

On the "Touche pas à mon poste" program of November 10, 2022:

With regard to the obligation to respect human rights:

6. It is clear from the record of the broadcast of the show "Touche pas à mon poste", shown on C8 on November 10, 2022, that a guest, a member of parliament and former columnist on the show, was invited to speak on the subject of welcoming migrants on board a humanitarian ship. The guest began to speak on the subject of the unequal breakdown of wealth and the activities in Africa of a shareholder in the Canal + group, prompting an initial salvo of reactions from the host, who interrupted him, prompting in turn a reaction from the guest criticizing the host for infringing on his freedom of expression. The guest was then called a"moron", a "loser", a "buffoon" and a "piece of shit", before leaving the set. These exchanges were then commented on in the absence of the guest, who was then referred to as "mange-merde" ("shit-eater").

7. These remarks are insulting in nature and their accumulation is particularly aggressive. In these circumstances, they are such as to infringe the guest's right to respect for his honor and reputation. This sequence, lasting over nine minutes, thus constitutes a breach by the publisher of the stipulations of article 2-3-4 of its agreement.

With regard to the obligation to control the airwaves :

8. It is clear from the minutes of the broadcast that the insulting remarks, made repeatedly and over a long period of time against the guest, were made mainly by the female presenter himself, without any person on set attempting to temper or moderate his remarks, since the columnists who spoke up all did so in support of the female presenter. These elements constitute a failure on the part of the publisher to control its on-air presence, and it is the publisher's responsibility to put in place effective schemes. This sequence thus also constitutes a breach by the publisher of the stipulations of article 2-2-1 of its agreement.

On the "Touche pas à mon poste" program of November 14, 2022 :

9. In the particular circumstances of this case, there are no grounds for legal sanctions against C8 concerning the "Touche pas à mon poste" show broadcast on November 14, 2022.

On the sanction imposed :

10. In view, firstly, of the nature and extent of the breaches constituting an infringement of the obligations resulting from articles 2-3-4 and 2-2-1 of the agreement and, secondly, of the previous legal sanctions referred to in point 5 imposed for breaches of the same obligations, a sanction of 3.5 million euros, or 3.65% of sales for 2021, should be imposed on C8.

11. In the circumstances of this case, this decision should also be published in the Journal officiel de la République française and on the Autorité's website.

After deliberation,

Decides :

Art. 1. - A fine of 3.5 million euros is imposed on C8. This sum will be allocated to the Centre national du cinéma et de l'image animée in application of article L. 116-5 of the Code du cinéma et de l'image animée.

Art. 2 - The present decision will be notified to C8 and published in the Journal officiel de la République française and on the Authority's website.

Deliberated on February 9, 2023 by Mr. Roch-Olivier Maistre, Chairman, Mr. Hervé Godechot, Mr. Benoit Loutrel, Ms. Juliette Théry, Ms. Anne Grand d'Esnon, Mr. Denis Rapone, Ms. Laurence Pécaut-Rivolier, Ms. Bénédicte Lesage and Mr. Antoine Boilley, members.

Done in Paris,

February 9, 2023.

For the French regulatory authority for audiovisual and digital communication

Chairman

R.-O. MAISTRE