Arcom opinion of April 19, 2023 on Article 4 of the draft legislation to secure and regulate the digital space

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 article 9;

Having regard to the submission of a case before the court, on April 6, 2023, by the Government, concerning article 4 of the draft legislation aimed at securing and regulating the digital space.

After due deliberation,

Delivers the following opinion:

By way of introduction, Arcom stresses that freedom of communication, and particularly freedom of the media, are cardinal democratic principles. While these fundamental principles demand to be reconciled with other objectives of general interest, including the protection of the public and public order, strong guarantees against any disproportionate or arbitrary infringement of freedom of expression are necessary.

This is the essential purpose of Law 86-1067 of September 30, 1986 on freedom of communication, which is part of the European manager defined by the Audiovisual Media Services Directive .

This legislative scheme already makes provision for the regulator to intervene against channels, particularly foreign ones, which show programs that offend human dignity, incite violence against certain groups of people, or seriously and repeatedly fail to provide honest information. In 2022, Arcom used these schemes to stop the diffusion of several Russian TV channels for the programs they were showing, in the context of the invasion of Ukraine by the Russian Federation.

These existing schemes are set to be strengthened and supplemented by the proposal for a European Media Freedom Act (EMFA), presented by the European Commission in September 2022 and submitted for adoption by the European Parliament and the Council of the European Union. Article 16 of this proposal aims to coordinate measures taken by Member State regulators against media established outside the European Union and under the control of a third country. Arcom has welcomed this initiative and, within the framework of the European Regulators Group for Audiovisual media services (ERGA), has put forward proposals to further strengthen the effectiveness of these provisions.

Given the importance of protecting freedom of communication, Arcom stresses that it is only in exceptional circumstances that measures such as legal sanctions taken on the basis of Article 215 of the Treaty on the Functioning of the European Union, which go beyond the specific framework of audiovisual media, should be envisaged against audiovisual media service editors.

Such was the case when, following the invasion of Ukraine by the Russian Federation, the Council of the European Union suspended the diffusion of content originating from RT France and several Russian TV channels by CFSP regulations and decisions of March 1, June 3 and December 16, 2022, amending regulation no. 833/2014 of July 31, 2014.

These decisions, which Arcom promptly brought to the attention of the players falling within the competence of Arcom, who promptly complied, were not, however, the subject of measures to ensure their full implementation.

Against this backdrop, Arcom welcomes the proposal before it, which strengthens its prerogatives and widens the scope of its powers to ensure the effective application of legal sanctions taken by the European Union on the basis of Article 215 of the Treaty on the Functioning of the European Union, concerning bans on the diffusion of the content of audiovisual communication services.

However, it wishes to make the following comments.

I - General comments on article 4

The general structure of the provisions of article 4 is based on two distinct schemes, one applicable to operators established in France and involved in audiovisual communication governed by the law of September 30, 1986 (publishers, distributors and satellite operators), the other applicable to operators involved in communication to the public online governed by the law of June 21, 2004 for confidence in the digital economy - LCEN (publishers, hosting providers, access providers, directories and search engines). Such a distinction seems appropriate to the Autorité.

II - Main observations on the draft legislation

1. On the provisions of Article 4 I concerning operators governed by the law of September 30 1986

The provisions of article 4 I modify the provisions of article 42 of the law of September 30, 1986. They provide the regulator with two legal options.

On the one hand, they enable Arcom to give operators formal notice to comply with the obligations imposed by the provisions adopted on the basis of article 215 of the Treaty on the Functioning of the European Union. Should this formal notice not be acted upon, the addressee may be subject to legal sanctions proceedings, in accordance with the provisions of article 42-7 of the law of September 30, 1986.

They also amend the provisions of article 42-10 concerning summary proceedings brought before the President of the Litigation Section of the Conseil d'Etat, so that the President of Arcom can demand that the administrative judge enjoin the recipient of the formal notice to comply with the obligations arising from the provisions adopted on the basis of article 215 of the Treaty on the Functioning of the European Union, and to cease broadcasting the content in question.

The Authority has no particular comment to make on these schemes.

2. Regarding the provisions of article 4 II concerning operators governed by the law of June 21, 2004 on confidence in the digital economy

Regarding the demand to cease diffusion

The schemes set out in II of article 4 amend article 11 of law no. 2004-575 of June 21, 2004 on confidence in the digital economy, and enable Arcom to take action against certain operators involved in online communication to the public. In particular, Arcom will be able to demand that access to certain online public communication services be prevented. The Authority stresses the importance of making proportionate use of this administrative blocking power.

a. Arcom notes that the scope of application set out in article 11 I includes publishers and hosting providers, although the text does not explicitly refer to the categories and definitions of the June 21, 2004 law. It believes that referring to the provisions of article 6(2)(I) and (III) of the June 21, 2004 law, relating to hosting providers and publishers, could usefully clarify the scope of application of the text. The Authority also notes that other persons likely to contribute to the diffusion of the content in question do not fall within the scope of application set out in I of article 11. This is particularly true of application and application store providers, who are summoned to play a growing role in media access. The same applies to other players such as VPNs and alternative DNS providers.

Arcom also notes that the provisions sometimes refer to a "demand", sometimes to an"injunction" addressed to hosting providers and publishers. For the sake of overall consistency of the text, it suggests that the terms "formal notice" be used uniformly under the provisions of I and II of article 11 of the June 21, 2004 law, as amended by II of article 4.

b. II of the same article 11 makes provision for Arcom to notify Internet service providers of the list of services for which it is demanded that their access be terminated, should the addressees fail to comply with the injunction.

The same observation can be made as above, regarding the reference to the provisions and categories of article 6 of the law of June 21, 2004 for access providers.

Should Arcom be unable to identify the publisher or host of the content in question, it could then directly demand that Internet service providers block the services concerned. This option is a response to the possible difficulty that the Authority may have in identifying publishers and hosting providers.

c. Arcom points out that the wording of II of the article contains an erroneous reference: "However, in the absence of information identifying the person providing hosting services or the person publishing the online public communication service in question, the authority may make the notification provided for in the first sentence of I of this article". The notification in question is in fact probably that referred to in the first sentence of II. Consequently, the sentence could be worded as follows: "However, in the absence of elements identifying the person providing hosting services or the person publishing the online public communication service in question, the authority may proceed with this notification [...]."

d. Arcom may also demand that search engines and directories take all necessary measures to stop listing offending services. This provision summons no comment.

e. The text makes provision for Arcom to act on its own initiative or on submission of a case before the court by the public prosecutor or any natural or legal person with an interest in acting.

However, any person may refer the matter to Arcom, provided that, in the event of a legal recourse, they can demonstrate that they have an interest in acting against an unfavorable decision. Arcom is therefore proposing to delete these provisions of the law, which are irrelevant for distinguishing between those who can lodge a complaint and those who cannot.

With regard to the possibility of legal sanctions proceedings against operators governed by the law of June 21, 2004

Article 11, IV of the June 21, 2004 Act, as amended by Article 4, II, makes provision for Arcom to issue administrative sanctions against publishers and hosting providers, in accordance with the provisions of article 42-7 of the September 30, 1986 Act.

a. The article makes provision for a financial penalty, depending on the seriousness of the breach, which may not exceed certain ceilings, depending on whether or not sales are known.

Arcom notes that it will be difficult in practice to enforce such penalties against publishers or hosting providers established outside France.

b. The conditions of "second offence", which allow the ceilings to be raised, do not summon any comment: they correspond to the provisions of Decision no. 2021-826 DC of October 21, 2021 of the French Constitutional Council on the law relating to the regulation and protection of access to cultural works in the digital era, requiring precise conditions of second offence, notably in terms of time limits.

d. The last paragraph, which recalls the jurisprudence of the French Constitutional Council on the combination of criminal and administrative sanctions, summons no comment.

The present notice will be published in the Official Journal of the French Republic.

Done in Paris,

April 19, 2023.

For the French regulatory authority for audiovisual and digital communication :

Le président,

R.-O. MAISTRE