Decision of June 21, 2023 concerning the legal sanctions proceedings initiated against C8 on January 9, 2023

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 42-1 and 42-7 ;

Having regard to Decree no. 92-280 of March 27, 1992, as amended, for the application of articles 27 and 33 of Law no. 86-1067 of September 30, 1986, and establishing the general principles defining the obligations of service editors with regard to advertising, sponsorship and teleshopping, in particular article 9;

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 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 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, and decision no. 2019-214 of May 29, 2019 renewing this authorization;

In view of decision no. 2022-57 of February 16, 2022 giving formal notice to C8;

Having regard to the letter dated January 9, 2023 from the rapporteur referred to in article 42-7 of the law of September 30, 1986 notifying C8 of the decision to initiate legal sanctions proceedings against it and inviting it to submit its observations within one month;

Vu le courriel du 23 janvier 2023 par laquelle la société C8 a sollicité la communication des pièces du dossier, lesquelles lui ont été adressées par un courrier du directeur général de l'Autorité de régulation de la communication audiovisuel et numérique du 26 janvier 2023 ;

Having regard to the e-mail of February 13, 2023, in which C8 requested an additional period of one week in which to submit its observations, and the e-mail of the same day in which the rapporteur referred to in article 42-7 of the law of September 30, 1986 accepted this request;

Having regard to the observations in defense dated February 20, 2023 produced by C8;

Having regard to the report drawn up by the rapporteur referred to in article 42-7 of the law of September 30, 1986, communicated to société C8 and to the Chairman of the French regulatory authority for audiovisual and digital communication by letters dated April 24, 2023;

Having regard to the decision of May 24, 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 May 25, 2023 in which C8 declined to make public the hearing of June 7, 2023 before the French regulatory authority for audiovisual and digital communication, in response to the latter's letter of May 12, 2023;

Having regard to the broadcasts of "Le 6 à 7" and "Touche pas à mon poste" on April 19 and May 4, 2022;

At the meeting of June 7, 2023, the Competition Authority heard the rapporteur and his deputy as well as Mr. Gérald Brice Viret, Managing Director of Canal + France in charge of antennas and programs, Ms. Laeticia Ménasé, General Secretary, Mr. Christophe Roy, Director of Regulatory Affairs and Competition, Mr. Vincent Pujol, Program Director of C8 and Mr. Emmanuel Glaser, lawyer.

Considering the following:

On the legal manager:

1. Firstly, under articles 42-1 and 42-4 of the aforementioned 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: suspension, for up to one month, of the publication, diffusion or distribution of the service(s), a program category, part of the program or one or more advertising sequences; reduction of the duration of the authorization or agreement by up to one year; a pecuniary sanction, possibly accompanied by suspension of publication or distribution of the service(s) or part of the program; withdrawal of the authorization or unilateral termination of the agreement; insertion of a press release in the programs. 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 article 9 of the aforementioned decree of March 27, 1992: "Surreptitious advertising is prohibited / For the purposes of this decree, surreptitious advertising is the verbal or visual presentation of goods, services, the name, trademark or activities of a producer of goods or a provider of services in programs, when this presentation is made for advertising purposes".

3. Finally, in a decision dated February 16, 2022, C8 was given formal notice to comply with the provisions of article 9 of the aforementioned decree of March 27, 1992, by no longer showing surreptitious advertising.

On the programs "Le 6 à 7" and "Touche pas à mon poste" of April 19 and May 4, 2022:

4. It is clear from the record of the broadcasts of "Le 6 à 7" and "Touche pas à mon poste" on April 19, 2022 on C8 that a 22-minute sequence was devoted to the presentation of a film, the director and some of the actors of which were present on the set.

5. According to the viewing log for the programs "Le 6 à 7" and "Touche pas à mon poste" broadcast by the C8 television service on May 4, 2022, a sequence lasting approximately one hour was devoted to the presentation of a film, with some of the actors present on the set.

6. While it is clear from the facts mentioned in the previous two points that the female presenter's company was involved in the production of the films presented, this circumstance, brought to the public's attention, cannot in itself establish a breach of the ban on surreptitious advertising. Furthermore, although the films were presented in a favorable light, the way in which they were presented did not exceed generally accepted practices in this field, particularly when the authors or performers of the works presented are, as in this case, invited to take part in the program. In view of the foregoing, there are no grounds for legal sanctions against C8.

After deliberation,

Decides :

Art. 1. - No legal sanctions are to be imposed on C8.

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

Deliberated on June 21, 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,

June 21, 2023.

For the French regulatory authority for audiovisual and digital communication

Chairman

R.-O. MAISTRE