Decision of January 17, 2024 imposing legal sanctions on Société d'exploitation d'un service d'information (S.E.S.I)

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 1, 3-1, 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. 2005-473 of July 19, 2005, as amended and extended, authorizing Société d'exploitation d'un service d'information (S.E.S.I.) to use a radioelectric resource to operate a national television service broadcast free-to-air by terrestrial hertzian means in digital mode initially called "i Télé" and then, as of decision no. 2016-680 of July 27, 2016, "CNews", and decision no. 2019-582 of December 11, 2019 extending the authorization of July 19, 2005 ;

Having regard to the agreement entered into between the French Superior Audiovisual Council and the Société d'exploitation d'un service d'information (S.E.S.I), on November 27, 2019, concerning the CNews television service, in particular article 2-3-7 ;

In view of decision no. 2022-288 of May 10, 2022 giving formal notice to Société d'exploitation d'un service d'information (S.E.S.I.);

In view of decision no. 2022-289 of May 10, 2022 giving formal notice to Société d'exploitation d'un service d'information (S.E.S.I.);

Having regard to deliberation no. 2018-11 of April 18, 2018 of the French Superior Audiovisual Council relating to the honesty and independence of news and the programs that contribute to it, in particular article 1;

Having regard to the broadcast elements of the program "La matinale week-end" shown on the "CNews" service on September 24, 2022 and the related report, of which the College has taken cognizance;

Vu les éléments de visionnage de l'émission " Midi news week-end " diffusée sur le service " CNews " le 24 septembre 2022 et le compte-rendu y afférant, dont le collège a pris connaissance ;

Having regard to the broadcast elements of the program "Face à l'info" shown on the "CNews" service on September 26, 2022 and the related report, of which the College is aware;

Having regard to the letter dated May 15, 2023 from the rapporteur referred to in article 42-7 of the law of September 30, 1986 notifying the Société d'exploitation d'un service d'information (S.E.S.I) 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 dated May 26, 2023 from the rapporteur referred to in article 42-7 of the law of September 30, 1986 notifying the Société d'exploitation d'un service d'information (S.E.S.I) 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 May 26, 2023 by which the Société d'exploitation d'un service d'information (S.E.S.I) 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 dated June 2, 2023;

Having regard to the observations of Société d'exploitation d'un service d'information (S.E.S.I) sent by e-mail on June 19, 2023;

Having regard to the report drawn up by the rapporteur and communicated to the Société d'exploitation d'un service d'information (S.E.S.I), its advisors and the chairman of the French regulatory authority for audiovisual and digital communication by letters dated December 6, 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 the option it holds under article 42-7, 6° of the law of September 30, 1986;

Having regard to the e-mail of December 21, 2023 by which the Société d'exploitation d'un service d'information (S.E.S.I) declined the possibility of making 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 December 8, 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. Thomas Bauder, Editorial Director of CNews, 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 42-1 of the Act of September 30, 1986: "If the person subject to the formal notice fails to comply with it, the French regulatory authority for audiovisual and digital communication may impose one of the following legal sanctions, taking into account the seriousness of the breach and provided that it is based on facts distinct or covers a period distinct from those which have already been the subject of a formal notice: [...] 3° A financial penalty, possibly accompanied by suspension of publication or distribution of the service(s) or part of the program [...]". Article 42-2 of the same law stipulates that: "The amount of the pecuniary sanction 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 generated during 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 the third paragraph of article 3-1 of the French regulatory authority for audiovisual and digital communicationof September 30, 1986, "the French regulatory authority for audiovisual and digital communication guarantees the honesty, independence and plurality of information and the programs that contribute to it, under the provisions of article 1 of [this] law" affirming the principle of freedom of communication to the public by electronic means. On this basis, article 1 of the deliberation of April 18, 2018 stipulates that the publisher "must ensure the honesty of the information and programs that contribute to it. / [...] / It shall provide rigorous evidence in the presentation and treatment of information. / It shall ensure respect for an honest presentation of controversial issues, in particular by ensuring the expression of different points of view by journalists, female presenters, hosts or on-air contributors". Furthermore, article 2-3-7 of the November 27, 2019 agreement stipulates that "the requirement of honesty applies to all programs. The publisher respects the deliberations of the French Superior Audiovisual Council on the honesty and independence of news and the programs that contribute to it".

3. Thirdly, in a decision dated May 10, 2022, the Société d'exploitation d'un service d'informations (S.E.S.I.) was given formal notice to comply in future, with regard to the CNews service, with the provisions of article 1 of the deliberation of April 18, 2018 relating to the obligation of honesty and rigor in information, as well as those relating to the expression of different points of view on controversial issues, to which the stipulations of article 2-3-7 of the agreement of November 27, 2019 refer. Furthermore, in a second decision dated May 10, 2022, the Société d'exploitation d'un service d'informations (S.E.S.I.) was given formal notice to comply in future, with regard to the CNews service, with the provisions of article 1 of the deliberation of April 18, 2018 relating to the obligation of honesty and rigor of information, to which the stipulations of article 2-3-7 of the agreement of November 27, 2019 refer.

On the "Face à l'info" program shown on September 26, 2022:

4. According to the broadcast of the "Face à l'info" news programme on September 26, 2022, an international "ranking" of the safest cities produced by the Numbeo website, a database supplied by its users, was mentioned. The subject was introduced by the female presenter in these terms: "[...] All this is happening against a backdrop of France's downgrading in terms of safety, France is the last of the European countries in the ranking, among those with at least four cities assessed, and it ranks behind Mexico, in third place from the bottom only ahead of Brazil and South Africa, France plummets in terms of insecurity, reactions." Those present on set then all expressed a similar point of view: "[...] On security as in other areas, well that's it, it's documented.[ When I criticize the concept of 'news', it's because all this is the symptom of a generalized disintegration, of an insecurity that is becoming a political and social norm, but we scatter it all over the news in the 'news' mode", " No , but that's exactly what I'm thinking about. [...] ". The comments were accompanied by a banner reading "Insecurity in France: the great downgrade", and twice by a graph entitled "Ranking of the safest countries".

With regard to the obligation of honesty and rigor in the presentation and processing of information:

5. It is clear from the broadcast report that the Numbeo "ranking" results were presented by those present on set as established facts, supported by a banner and a graph inlaid on the screen.

6. However, Numbeo is a site based on data collected from opinions expressed by visitors to the site, and not on a survey of a representative sample of the population. No guarantee is given as to the identity of the voters, their representativeness or their knowledge of the cities about which they express their opinions. Such results are therefore totally unscientific. Furthermore, this "ranking" is not based on any official figures.

7. Consequently, the mention of this "ranking" should have summoned precautions on the part of the publisher, who could not present its results as established facts. Neither the details of its methodology nor its pitfalls were presented on air. Thus, the publisher's presentation of the Numbeo "ranking" in the sequence of September 26, 2022, was such as to lead viewers to believe that this "ranking" was based on established figures, whereas this was not the case.

8. Consequently, with regard to this sequence, the publisher did not comply with its obligation to demonstrate honesty and rigor in the presentation and processing of information. It has thus breached the stipulations of article 2-3-7 of its agreement and the provisions of article 1 of the deliberation of April 18, 2018, to which it refers.
With regard to the obligation to express different points of view on controversial issues :

9. It is also clear from the record of the broadcast of the sequence mentioned in point 4 that those on set all deplored this result and formulated an identical opinion on the dangerousness of France and in particular Paris compared with other cities and countries around the world, resulting in a marked imbalance in the treatment of this subject, a fortiori on the sole basis of a questionable "ranking" wrongly presented as an established fact, as set out in points 5 to 8.

10. Insecurity is a particularly sensitive topic of general interest. It involves controversial issues and therefore requires the publisher to ensure the expression of different points of view.

11. Consequently, this situation characterizes a breach by the publisher, for this sequence, of the stipulations of article 2-3-7 of its agreement and the provisions of article 1 of the deliberation of April 18, 2018, to which it refers, according to which the publisher is required to ensure the expression of different points of view on issues lending to controversy.

On the sanction imposed :

12. In view of the nature of the breaches constituting disregard of the provisions of article 1 of the deliberation of April 18, 2018 relating to the obligation of honesty and rigor in the presentation and processing of information, as well as the obligation to express different points of view on controversial issues, a penalty of 50,000 euros should be imposed on Société d'exploitation d'un service d'information (S.E.S.I.).

13. 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 Société d'exploitation d'un service d'information (S.E.S.I.). 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 the Société d'exploitation d'un service d'information (S.E.S.I.) 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