Decision of January 17, 2024 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 oeuvre par l'Autorité de régulation de la communication audiovisuel 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, 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 legal sanctions on the company C8 ;

Having regard to the elements of the broadcast of the program "Touche pas à mon poste" shown on January 30, 2023 on the television service C8 and the related report, of which the College has taken cognizance;

Having regard to the letter dated June 12, 2023 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 June 16, 2023 by which the 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 letter of June 19, 2023;

Having regard to the observations made by C8 by e-mail dated July 13, 2023;

Having regard to the report drawn up by the rapporteur and communicated to société C8, its advisors and the Chairman of the French regulatory authority for audiovisual and digital communication by letters dated November 3, 2023;

Having regard to the decision of December 13, 2023, by which the French regulatory authority for audiovisual and digital communication decided not to make use of its right under article 42-7, 6°, of the law of September 30, 1986;

Having regard to the e-mail of December 21, 2023 in which C8 declined to make public the hearing of January 10, 2024 before the French regulatory authority for audiovisual and digital communication, in response to the latter's letter of November 29, 2023;

Having regard to the other documents in the file;

At the meeting of January 10, 2024, the Competition Authority heard the rapporteur as well as Mr. Gérald Brice Viret, Managing Director of Canal+ France in charge of antennas and programs, Mr.Franck Appietto, Managing Director of C8, Mr. Christophe Roy, Director of Regulatory Affairs and Competition of the Canal + Group,Ms. Laetitia Menase, Secretary General of the Canal + Group and Me Eleni Moraïtou.

Considering the following:

On the legal manager :

1. Firstly, under article 4-2-2 of the May 29, 2019 agreement: "If the publisher fails to 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 on 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 his or her 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, now D8 and C8, was given formal notice to comply in the future, in particular, with the stipulations of article2-3-4 of the June 10, 2003 agreement relating to human rights [now article2-3-4 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, it was sanctioned for breaches of articles 2-3-4 and 2-2-1 of its agreement.

On the "Touche pas à mon poste" program of January 30, 2023:

With regard to the obligation to respect human rights:

6. According to the minutes of the broadcast of the program "Touche pas à mon poste", shown on C8 on January 30, 2023, during the segment entitled "20 minutes people", the female presenter and columnists discussed a recent controversy concerning videos of a young girl, then aged 14, posted on one of her social networking accounts.During this sequence, several videos of the girl were shown in close-up and for a significant length of time, and one of the show's columnists said of her: "For me, it's the height of vulgarity", "So for me, it's hyper vulgar, with her tongue, her mouth, her tits...".

7. The comments made about the physical appearance of an identified person under 18 are particularly violent, rude and disparaging. In addition, her behavior in the video is described under the provisions of: "Because it's the new generation, we're allowed to be te-pu?".

8. These facts are such as to infringe the youngsters' right to respect for their honor and reputation. This sequence thus constitutes a breach by the publisher of the aforementioned stipulations of article 2-3-4 of its agreement, relating to the right to honor and reputation of a person, who is moreover a person under 18.

With regard to the obligation to control the airwaves :

9. It is clear from the record of the broadcast that the videos of the youngsters, and images taken from them, were repeatedly shown by the publisher in order to fuel the debate on set, in particular during the reactions of the columnists, and in particular those referred to in points 6 and 7, by means of a screen-splitting scheme. While some of the columnists were able to make more measured comments than those mentioned in points 6 and 7, the fact remains that these interventions led to a re-launch of the debate rather than moderating it. Finally, if the female presenter said at the end of the program: "And we recall ... and, and, I think you're going a bit far. We're reminding you that [...] is a person under 18, so take it easy, eh?", this belated remark did not explicitly sentence the program to remarks damaging to the girl's honor and reputation.

10. Under these conditions, the publisher's on-air control was inadequate. This sequence thus also constitutes a breach by the publisher of the aforementioned stipulations of article 2-2-1 of its agreement.

On the sanctions imposed :

11. In view of, on the one hand, the nature and seriousness of the breaches committed, particularly insofar as they concern a person under 18, such breaches constituting an infringement of the obligations resulting from articles 2-3-4 and 2-2-1 of the agreement and, on the other hand, the previous legal sanctions mentioned in point 5 already pronounced for previous breaches of these same obligations, it is appropriate to pronounce a sanction of 50,000 euros against C8.

12. 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 50,000 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 January 17, 2024 by Mr. Roch-Olivier Maistre, Chairman, Mr. Hervé Godechot, Mrs. Juliette Théry, Mrs. Anne Grand d'Esnon, Mr. Denis Rapone, Mrs. Laurence Pécaut-Rivolier, Mrs. Bénédicte Lesage and Mr. Antoine Boilley, members.

Paris, January 17, 2024.

For the French regulatory authority for audiovisual and digital communication

Chairman

R.-O. MAISTRE