Decision of May 31, 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, 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 October 5, 2022 on the C8 television service;

Having regard to the letter dated January 6, 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 January 13, 2023 by which the company C8 requested the 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 January 16, 2023;

Having regard to the observations made by C8 by e-mail dated February 11, 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 March 29, 2023;

Having regard to the decision of April 19, 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 April 20, 2023 in which C8 declined to make public the hearing of May 10, 2023 before the French regulatory authority for audiovisual and digital communication, in response to the latter's letter of April 6, 2023;

Having regard to the other documents in the file;

At the meeting of May 10, 2023, 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, President of C8, Ms. Laetitia Ménasé, Secretary General, Mr. Christophe Roy, Director of Regulatory Affairs and Competition and Me Sandrine Perrotet.

Considering the following:

On the legal manager:

1. Firstly, according to 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 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 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 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 October 5, 2022:

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", aired on C8 on October 5, 2022, the decision by several town halls not to install giant screens to show matches during the soccer World Cup in Qatar, or to open a "fan zone", was mentioned on air. During this segment, in which the Mayor of Paris did not take part, she was attacked by name by the presenter, who invited her to "shut her mouth" and "hunt rats at night instead of talking garbage", lumping her in with a "bunch of morons", exclaiming "don't piss us off" and repeating the expression "shut your mouth" several times .

7. These comments, aimed not only at the position itself, but also and above all at the person carrying it out, are violent and vulgar. Their particular aggressiveness, their repeat offence and their cumulative effect are such as to infringe the rights of the Mayor of Paris to respect for her honor and reputation. This sequence 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 comments made repeatedly against the mayor were made mainly by the female presenter himself, with no one present on set attempting to temper him or moderate the comments. Such a situation constitutes a lack of control of the broadcast by the publisher, who is responsible for putting in place effective schemes, especially in view of the breach previously sanctioned in 2019. This sequence thus also constitutes a breach by the publisher of the stipulations of article 2-2-1 of its agreement.

On the sanctions imposed :

9. In view of , , the nature, the scope and the seriousness of the breaches constituting a breach of the obligations resulting from articles 2-3-4and 2-2-1of the agreement and, secondly, the previous legal sanctions mentioned in point 5 already pronounced for previous infringements of the same obligations, there are grounds to pronounce a sanction of 300,000euros, against company C8.

10. 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 300,000 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 May 31, 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,

May 31, 2023.

For the French regulatory authority for audiovisual and digital communication (Autorité de régulation de la communication audiovisuel et numérique)

Chairman R.-O. MAISTRE