Touche pas à mon poste!" show to be broadcast on March 9, 2023: C8 fined

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 decision no. 2023-63 of February 9, 2023 imposing a financial penalty on C8;

Having regard to the elements of the broadcast of "Touche pas à mon poste" on March 9, 2023 on the C8 television service;

Having regard to the letter dated April 14, 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 April 26, 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 April 27, 2023;

Having regard to the observations made by C8 by e-mail dated May 19, 2023;

Vu le rapport établi par le rapporteur et communiqué à la société C8, ses conseils, ainsi que au président de l'Autorité de régulation de la communication audiovisuel et numérique par courrier du 3 juillet 2023 ;

Having regard to the e-mail of July 10, 2023 in which C8 declined to make public the hearing of July 19, 2023 before the French regulatory authority for audiovisual and digital communication, in response to the latter's letter of July 3, 2023;

Having regard to the decision of July 12, 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 other documents in the file;

At the meeting of July 19, 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. Christophe Roy, Director of Regulatory Affairs and Competition, Mr. Vincent Pujol, Program Director of C8 and Me Sandrine Perrotet.

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 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 later became D8 and then C8, was given formal notice to comply in future with, in particular, 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 breach of 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 2-2-1 and 2-3-4 of its agreement. Finally, in a decision dated February 9, 2023, it was also sanctioned for breaches of articles 2-2-1 and 2-3-4 of its agreement.

On the " Touche pas à mon poste " program of March 9, 2023:

With regard to the obligation to respect human rights:

6. It emerges from the record of the broadcast of the show " Touche pas à mon poste " on C8 on March 9, 2023 and in connection with the case in which Pierre Palmade is implicated, that part of this program was devoted to drug use in artistic and political circles. During this segment, a guest, presented as " the ex-dealer of all Paris ", acknowledged by name several public figures of drug consumption, and even trafficking in these substances for one of them, as well as pedophilia and the consumption of " adrenochrome ", a substance presented on air as being derived from the blood of kidnapped and sacrificed children.

7. These remarks acknowledging individuals for particularly serious and slanderous acts, some of which stem from a conspiracy theory, and referring to the consumption of " adrenochrome ", are such as to infringe the rights of individuals, designated by name or identifiable by their title during the sequence, 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.

With regard to the obligation to control the airwaves :

8. The broadcast report shows that the guest's statements were not firmly and immediately contradicted, even though they were foreseeable in view of his public comments. Similarly, the broadcast revealed a certain complacency towards the guest, who was regularly challenged and encouraged to elaborate on some of his remarks, with the host going so far as to lend credibility to some of them, particularly the most serious, declaring on the subject of " adrenochrome ": " There are a lot of people on the networks who say that Gérard raises something, which is, which is, which is real. [...] There are people who say that it exists "; " It's a practice, apparently it exists, and he's right to say so, because what Gérard is saying is also very serious, and it's important that he says so ". The fact that, on several occasions, the host indicated that the guest's comments were his own responsibility does not mitigate the publisher's liability.

9. Such a situation constitutes a failure on the part of the publisher to control its broadcast, and it is up to the publisher to put in place effective schemes, especially in view of the breaches previously sanctioned in 2019 and 2023. 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 :

10. In view of the nature and seriousness of the breaches constituting an infringement of the obligations arising from articles 2-3-4 and 2-2-1 of the agreement, and in view of the previous legal sanctions referred to in point 5 already imposed for earlier breaches of these same obligations, a fine of 500,000 euros should be imposed on C8.

11. 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 500,000 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 July 26, 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.

Paris, July 26, 2023.

For the French regulatory authority for audiovisual and digital communication

Chairman R.-O. MAISTRE