Decision of June 21, 2023 concerning the legal sanctions proceedings initiated against C8 on January 9 and March 15, 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 letters dated January 9 and March 15, 2023 from the rapporteur referred to in article 42-7 of the Act of September 30, 1986, notifying C8 of the decisions to initiate two legal sanctions proceedings against it, and inviting it to submit its observations on each of these proceedings within a period of one month; Having regard to the e-mails dated January 23 and March 21, 2023 from the rapporteur referred to in article 42-7 of the Act of September 30, 1986, notifying C8 of the decisions to initiate two legal sanctions proceedings against it, and inviting it to submit its observations on each of these proceedings within a period of one month;

Having regard to the e-mails dated January 23 and March 21, 2023 by which C8 requested the communication of documents in the context of the sanction proceedings initiated against it, which were sent to it by letters from the Director General of the French regulatory authority for audiovisual and digital communication dated January 26 and March 22, 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 in connection with the legal sanctions proceedings initiated against it on January 9, 2023, 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 23 and April 19, 2023 produced by C8;

Vu les rapports établis par le rapporteur mentionné à l'article 42-7 de la loi du 30 septembre 1986, communiqués à la société C8 ainsi que au président de l'Autorité de régulation de la communication audiovisuel et numérique par courrier des 28 mars et 12 mai 2023 ;

Having regard to the decisions of May 24, 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 May 25, 2023 in which C8 declined to make public the hearings of June 7, 2023 before the French regulatory authority for audiovisual and digital communication, in response to the latter's letters of May 12 and 16, 2023;

Having regard to the broadcast reports relating to the shows "Le 6 à 7" on November 4, 9 and 17, 2022 and January 24 and 25, 2023 and "Touche pas à mon poste" on November 17, 2022, January 24 and 30, 2023;

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, Director of Programs at C8, Me Emmanuel Glaser, lawyer.

Considering the following:

On the legal manager:

1. On the one hand, 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. 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" on November 4, 9 and 17, 2022 and "Touche pas à mon poste" on November 17, 2022:

4. It is clear from the record of the broadcast of "Le 6 à 7" on November 4, 2022 on C8 that between approximately 6:41 pm and 7:16 pm, the host of the show was wearing a jacket with the brand logo on the sleeve, which was visible and identifiable whenever he spoke. Another characteristic brand logo on the back of the jacket was also seen thirty times on screen.

5. It is clear from the record of the broadcast of "Le 6 à 7" on November 9, 2022 by the C8 television service that, from 6.41 pm to around 7.15 pm, the host was wearing sneakers produced in collaboration with two brands, whose respective logos were, in the case of the former, identifiable almost sixty times and, in the case of the latter, visible during a close-up shot lasting three seconds.

6. The host and one of the columnists also had the following to say about the shoes: the columnist: "They're strong, very strong. There aren't many of those around"; the host: "I'm telling you the truth, they summoned me, they called me to say 'Would you like them' (...) Do you know them? Do you like them? Would you have liked them?"; columnist: "Of course, I love them, but they didn't summon me"; host: "They didn't summon you? So, the (...) are in the second curtain, all the pigeons are in the second curtain. They're going to summon you, don't worry, you're going to pay them a lot more! Don't worry, your turn will come!"; the columnist: "They've never respected me, they make me wait in line".

7. According to the record of the broadcast of "Le 6 à 7" and "Touche pas à mon poste" on the C8 television service on November 17, 2022, the host was wearing a sweatshirt with two brand logos on the sleeves and chest of the garment, which were visible from around 6.40 pm to 7.15 pm. While during the second show the logo on the host's chest was obscured by tape, the highly emblematic logo on the sleeves remained visible, making the brand identifiable from around 7.20pm to 9.15pm.

8. The particularly significant and not incidental exposure enjoyed by the trademarks mentioned in points 4 to 7 of this decision, promoted by their association with the image of a personality enjoying significant awareness, constitutes a breach of the provisions of article 9 of the aforementioned decree of March 27, 1992, with which the publisher had been given formal notice to comply. In view of their seriousness and repetition, these facts justify the imposition of a pecuniary sanction of 120,000 euros on the publisher.

On the programs "Le 6 à 7" on January 24 and 25, 2023 and "Touche pas à mon poste" on January 24 and 30, 2023:

9. It emerges from the record of the broadcast of "Le 6 à 7" on the C8 television service on January 25, 2023 that, at the host's request, the show's hairdresser appeared on the set twice, for periods of around 3 and 22 minutes respectively, wearing an identifiable brand T-shirt. During the second sequence, during which the hairdresser cut a columnist's hair, one of the clothing brand logos was masked, although it remained recognizable, and appeared mainly in the background.

10. Particularly in view of their impromptu nature, these facts are not likely to reveal an intentional act of promotion. They do not, therefore, reveal any infringement of the ban on surreptitious advertising.

11. It is clear from the record of the broadcast of "Le 6 à 7" and "Touche pas à mon poste" on C8 on January 24, 2023 that one of the columnists was wearing a brooch bearing the highly recognizable initials of the jewelry brand. This accessory was the subject of a hundred or so views, including numerous close-ups, and was also the focus of public attention when the host of the show praised the columnist's outfit, saying: "It's very serious, it's very chic, it's very tasteful".

12. During the second half of the program "Le 6 à 7" and in the program "Touche pas à mon poste" on the same day, one of the columnists wore a garment whose brand received significant exposure through around 140 views of an emblematic logo.

13. According to the broadcast report on the "Touche pas à mon poste" show broadcast by C8 on January 30, 2023, one of the guests was wearing a sweatshirt whose logo and brand, concealed during the first part of the sequence, were discovered during the last six minutes of the show and received around ten views on the screen.

14. Constituting repeated and not incidental breaches of the ban on surreptitious advertising, the facts mentioned in points 11 to 13 of this decision reflect a failure by C8 to comply with the provisions of article 9 of the aforementioned decree of March 27, 1992, with which the publisher had been given formal notice to comply. In view of their seriousness, these facts justify the imposition of a fine of 80,000 euros on C8.

15. With regard to the facts mentioned in points 4 to 8 and 11 to 14, it is also appropriate in the circumstances of this case to publish this decision in the Journal officiel de la République française and on the Autorité's website.

After deliberation,

Decides :

Art. 1. - For the events mentioned in points 4 to 7 of this decision, a fine of 120,000 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 - For the acts mentioned in points 11 to 13 of this decision, a fine of 80,000 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. 3 - 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 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