Deliberation of December 20, 2011 on the protection of youngsters, ethics and accessibility of programs on on-demand audiovisual media services
Deliberation of December 20, 2011 on the protection of youngsters, ethics and accessibility of programs on on-demand audiovisual media services
French Superior Audiovisual Council,
Having regard to Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, and in particular Article 12 thereof;
Having regard to Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of 20 July 1998;
Having regard to Act no. 86-1067 of September 30, 1986 on freedom of communication, in particular articles 1, 3-1 and 15;
After due deliberation,
Decides:
Article 12 of Directive 2010/13/EU of the European Parliament and of the Council of March 10, 2010, known as the "Audiovisual Media Services" Directive, requires the implementation of appropriate measures to ensure that "on-demand audiovisual media services (...) which might seriously impair the physical, mental or moral development of minors are only made available to the public in such a way that minors cannot normally hear or see such on-demand audiovisual media services".
In accordance with the provisions of articles 1, 3-1 and 15 of the September 30, 1986 law on freedom of communication, the French Superior Audiovisual Council is responsible for guaranteeing this freedom within the limits required to safeguard public order, respect human dignity, combat discrimination and protect children and teenagers on all audiovisual communication services, including on-demand audiovisual media services (SMAD).
The law mandates the Council to protect youngsters from programs likely to harm their physical, mental or moral development. In particular, article 15 requires the Conseil to ensure the use of all means appropriate to the nature of on-demand audiovisual media services.
The development of a mode of consumption offering viewers great freedom of choice increases the potential exposure of youngsters to content likely to offend their sensibilities. For this reason, the Conseil has issued specific rules for on-demand audiovisual media services.
The Conseil will ensure that services falling within the competence of France are subject to its regulation, so as to ensure fair competition between the various services for the benefit of viewers.
I. - SCOPE OF APPLICATION
The present deliberation applies to on-demand audiovisual media services as defined in article 2 of the law of September 30, 1986, established in France in accordance with the criteria laid down in articles 43-3 and 43-5 of this law, or deemed subject to the rules applicable to services established in France by virtue of article 43-10.
Its schemes also apply to distributors of services established in France who make available to the public one of the on-demand audiovisual media services mentioned in the previous paragraph. Pursuant to article 2-1 of the French law of September 30, 1986, persons who enter into contractual relationships with service editors or other service distributors with a view to constituting a supply of audiovisual communication services made available to the public via an electronic communications network are deemed to be distributors.
II. - PROTECTION OF CHILDREN AND ADOLESCENTS
Programs are classified according to five degrees of acceptability with regard to the need to protect children and adolescents:
- category I (no labelling): programs aimed at all audiences;
- category II (round white pictogram with black -10 inlay): programs with certain scenes likely to be disturbing for persons under 18;
- category III (round white pictogram with -12 in black): cinematographic works forbidden to persons under 18, and programs likely to disturb persons under 18, particularly when they make systematic and repeated use of physical or psychological violence;
- category IV (round white pictogram with black inlay -16): cinematographic works forbidden to persons under 16, and programs of an erotic or violent nature likely to impair the physical, mental or moral development of persons under 18;
- category V (round white pictogram with the inlay -18 in black): cinematographic works forbidden to persons under 18, and pornographic or very violent programs intended for a warned adult audience and likely to impair the physical, mental or moral development of persons under 18.
A. - Program classification
The publisher implements the above-mentioned program classification. He applies the corresponding signage as defined in B.
The classification assigned to cinematographic works for screening in cinemas may be used as an indication of their availability on on-demand audiovisual media services. However, it is the publisher's responsibility to check that this classification can be transposed without prejudice to on-demand availability, and where appropriate, to strengthen it.
These schemes do not exempt the publisher from compliance with the provisions of Decree no. 90-174 of February 23, 1990 on the classification of cinematographic works.
The Conseil encourages coordination between editors with a view to harmonizing the classifications affixed to the programs they make available to the public on on-demand audiovisual media services, so that all viewers benefit from an equivalent level of protection and information, necessary for the informed exercise of their freedom of choice.
B. - Signage
Signage includes the pictogram mentioned above, the words "not recommended for children under ... years of age" or, where appropriate, the words accompanying the film's operating licence when it is issued by the Minister of Culture.
The pictogram must be brought to the public's attention at every mention of the program, notably on images and descriptions in the catalogue of programmes, as well as in extracts and commercials. The pictogram appears in trailers.
When the program is broadcast, the pictogram is also present in the following ways, at the publisher's discretion:
- either the pictogram is displayed on the entire broadcast screen (1) for at least five seconds before the start of the program, accompanied by the written warning "not recommended for children under ... years of age" or, where appropriate, the warning accompanying the film's operating licence when granted by the Minister of Culture;
- or the pictogram is present throughout the program, in the bottom right-hand corner of the broadcast screen. The aforementioned information must accompany the pictogram at the start of the program for at least one minute.
The elements making up the signage are legibly presented.
C. - Conditions for making category I to IV programs available
The publisher of an on-demand audiovisual media service that supplies "all-audience" programs in particular, shall set up a "trust area" in its catalogue of programmes, supplying families and young viewers with a set of "all-audience" programmes only, free from excerpts, programme trailers and advertising messages for content or services restricted to persons under 18.
The publisher refrains from excessively promoting programs that are not adapted to the sensibilities of all audiences.
Images, descriptions, excerpts, trailers and advertising messages for category I to IV programs must not offend the sensibilities of youngsters.
When they are not made available to the public for a fee, category IV programs are only accessible between 10:30 pm and 5 am.
The Conseil encourages publishers and distributors of on-demand audiovisual media services to promote technical schemes enabling access by persons under 18 to programs to be restricted according to age and program classification.
D. - Conditions for making category V programs available
1. Marketing
Category V programs are marketed exclusively as part of pay-per-view supplies, by contract or on a pay-per-view basis.
Supplies including category V programs are not offered on more advantageous commercial terms than supplies not including these programs.
2. Service organization
Category V programs are isolated in a reserved area, along with images, descriptions, excerpts, trailers and advertising messages for these programs.
3. Program access
The home page of the area reserved for category V programs includes a warning to the user. It mentions the identification of the programs offered. It points out the harmfulness of these programs for minors, and the legal sanctions to which anyone who allows minors to see or hear such programs is exposed (article 227-22 of the French Penal Code).
By way of derogation from article II, B, the information may only be displayed on the home page of the reserved area.
4. Technical locking measures
a) The area reserved for category V programs is permanently subject to a specific lock, active from the first use of the service.
b) This lock consists of a personal code comprising at least four digits (with the exception of a series of zeros), not visible on the screen, and is blocked after five unsuccessful attempts.
c) As from the entry into force of these provisions, any user of an on-demand audiovisual media service must, in order to access category V programs, use this personal code and have it configured as follows:
- when the user is a subscriber (2), he/she must go to the management area of his/her contract, accessible via a management code. Non-subscribers (3) must enter a payment identifier (e.g. credit card details, electronic payment identifier);
- the user swears that he/she is of legal age, then creates his/her personal code. A message then appears on the screen, announcing that information confirming the creation of the personal code has been sent;
- a message is sent to the user by an appropriate means (e-mail, post, SMS, telephone summon, etc.) (4) to confirm that the personal code has been set up. This message provides precise information on the usefulness and operation of the locking scheme.
Until the personal code has been configured by the user, access to category V programs must not be possible.
d) The personal code is used exclusively for access to category V programs. It may be the same as that used by distributors as part of the obligation set out in B of II of notice no. 2004-7 of December 15, 2004 and notice no. 2005-6 of July 26, 2005 applicable in overseas France, subject to compliance with the proceedings described in c).
e) Access to category V programs must be re-locked each time access is attempted to the space reserved for these programs.
f) The user may not deactivate the locking scheme.
5. User information
The publisher and distributor of on-demand audiovisual media services including category V programs shall inform users of the existence and operation of the locking scheme in their various communication media. This information is permanently available, and its usefulness is regularly recalled.
6. User choice not to receive Category V programs
The Conseil encourages publishers and distributors of on-demand audiovisual media services offering category V programs to develop technical schemes enabling users to opt out of receiving such content at any time.
E. - Awareness-raising on the scheme to protect youngsters
An annual public information and awareness-raising campaign on the child and adolescent protection scheme is shown on on-demand audiovisual media services in accordance with the procedures laid down by the French Superior Audiovisual Council.
III. - PROGRAM DEONTOLOGY
In compliance with the constitutional principles of freedom of expression and communication and editorial freedom, the service editor of an on-demand audiovisual media service shall ensure compliance with the principles set out below.
For the application of all these schemes, the French Superior Audiovisual Council takes into account the programme type in its assessment.
A. - Human dignity
Programs made available to the public on on-demand audiovisual media services must not undermine human dignity as defined by law and jurisprudence. This principle may not be departed from by special agreements, even if consent is expressed by the person concerned.
In particular, it is forbidden to make available to the public programs devoted to the depiction of sexual violence or perversions, degrading to the human person or leading to his degradation. The same applies to pornographic programs featuring persons under 18, as well as programs featuring extreme or gratuitous violence.
In the case of programs, particularly games and entertainment programs, involving the almost permanent, long-term recording of the actions, gestures and words of isolated individuals, the principle of respect for human dignity requires that, despite the participants' expressed consent, they should have daily respite periods of significant duration, without any audio or visual recording, and a permanent place where they are not subject to public observation. For safety reasons, participants may be constantly monitored by the production company, but without the corresponding recordings being made available to the public. Participants in these programs must be clearly informed of all these measures.
The spirit of exclusion must not be overemphasized in these programs.
B. - Safeguarding public order
On-demand audiovisual media services must respect public order.
Programs made available to the public must not incite dangerous, delinquent or uncivil behavior or practices.
C. - Fight agains discrimination
Programs made available to the public on on-demand audiovisual media services must not incite hatred or violence against any person or group of persons on the grounds of their origin, membership or non-membership of a particular ethnic group, nation, race or religion, or on the grounds of their gender, sexual orientation or disability, in accordance with legal provisions relating to freedom of the press.
D. - Honesty of programs
The requirement of honesty applies to all programs made available to the public on on-demand audiovisual media services. The publisher verifies the validity and sources of the information. Wherever possible, he will indicate the source and present uncertain information in the conditional tense.
E. - Respect for human rights
The publisher ensures compliance with civil and criminal provisions relating to the rights of the individual, in particular with regard to respect for the presumption of innocence, the confidentiality of private life, the right to the image, honor and reputation of persons, and the obligation to guarantee, in certain cases, the anonymity of minors.
IV. - PROGRAM ACCESSIBILITY FOR PEOPLE WITH VISUAL OR HEARING IMPAIRMENTS
Article 7 of the March 10, 2010 directive encourages the development of accessibility to audiovisual media services for people with visual or hearing impairments.
The Conseil recommends that service editors and distributors make their programs accessible to the deaf, hard-of-hearing, blind and partially-sighted.
V. - SCHEMES SPECIFIC TO OVERSEAS FRANCE DEPARTMENTS AND TERRITORIES
Publishers and distributors of on-demand audiovisual media services shall ensure that the availability of category IV programs in overseas France complies with the scheduling conditions defined in C of II of this resolution.
VI. - MISCELLANEOUS, TRANSITIONAL AND FINAL PROVISIONS
The present resolution has been adopted in accordance with Directive 98/34/EC of the European Parliament and of the Council of June 22, 1998, and with Notification n° 2011/458/F of September 6, 2011.
It abrogates and replaces deliberation no. 2010-57 of December 14, 2010 on the protection of youngsters, ethics and accessibility of programs on on-demand audiovisual media services, amended by deliberation no. 2011-30 of July 12, 2011.
The provisions of D of II will come into force six months after publication of this resolution.
Between January 1 and June 30, 2013, the Council will review the application of the present resolution, in particular with regard to measures to protect youngsters in the various media, including the Internet.
The present deliberation is applicable throughout France.
It will be published in the Official Journal of the French Republic.
Paris, December 20, 2011
For the French Superior Audiovisual Council :
Le président,
M. BOYON
(1) The broadcast screen consists of the screen itself or the part of the screen in which the program appears.
(2) The subscriber user is the person who has subscribed to a SMAD or to a broader supply from a distributor of electronic communications services including a SMAD on a fee-for-service or subscription basis.
(3) The non-subscriber user is the person using a SMAD on a fee-for-service basis not included in a broader supply from a distributor of electronic communications services.
(4) Where postal, electronic or telephone contact details have been provided by the user prior to configuring the personal code (in particular when subscribing to a broader supply from a distributor of electronic communications services), the distributor uses one of these contact details to ensure that the personal code is configured by the subscription holder.