Opinion of December 17, 2002 on the draft legislation for confidence and security in the digital economy

In a letter dated November 28, 2002, the French Superior Audiovisual Council was asked by the Minister of Culture and Communication to give its opinion on the draft legislation for confidence and security in the digital economy. The Council's observations, which focus on the legal status of on-line communication services and "satellite schemes", are as follows.

I - SCHEMES RELATING TO ONLINE PUBLIC COMMUNICATION SERVICES

The Conseil reminds us that the convergence of services and networks should encourage the legislator to strive for technological neutrality, and therefore for equal treatment between services with similar content accessible on different media.
However, the principle of technological neutrality must be tempered by various criteria that justify different levels of obligation, such as the scarcity of resources (limited capacity for transporting services on terrestrial and cable broadcast networks), the relative impact of services depending on the medium used, or the varying degree of user intervention in accessing services and personalizing their content.
Technological developments would have justified more radical changes to the legislation, calling into question the current architecture of the September 30, 1986 law (based on regulation by medium), which sets out specific regimes for radio and television-like services, regardless of the medium used.
The Conseil regrets that this is not the approach adopted in the draft legislation for confidence and security in the digital economy, which is limited to partial adjustments and leaves significant disparities in legal regimes between services of the same nature.

Article 1: definition of online public communication
In article 2 of the 1986 law, the draft legislation introduces a definition of online public communication, which appears as a subset of audiovisual communication.
The Conseil's verdict is that this definition is satisfactory in principle, insofar as it does not call into question the fact that services such as websites are covered by audiovisual communication law. This reflects the fact that, over and above differences in use, which justify distinct legal regimes and modes of regulation, all services made available to the public cover the same content challenges, particularly in terms of the formation of ideas and access to knowledge and culture, and must ensure compliance with the same principles (plurality, protection of persons under 18, respect for the dignity of the person, respect for privacy, etc.). However, this inclusion in audiovisual communication remains highly theoretical, insofar as Article 2 of the draft legislation leads to the creation of a specific legal regime that exempts online public communication services from the general principles of audiovisual communication law.
For this reason, the Conseil believes that the establishment of appropriate regimes for each type of service, from a perspective of technological neutrality and with a view to preserving equal treatment between services of the same nature, should involve a clear definition, in the law, of the criteria for qualifying a television or radio broadcasting service, whatever its medium. In the case of online public communication, this definition should apply to the full and simultaneous transmission of radio and television services shown on other media, as well as to the diffusion of original services that the public can assimilate to such services, whatever the technical means of access to these services - downloading or immediatestreaming.
This is not the approach adopted in the draft legislation, which reinforces the wide disparity in regimes for radio and television services and similar services, depending on their broadcasting method (terrestrial hertzian; cable and satellite; internet). This creates a risk of distortion of competition and circumvention of content obligations by migration to the least restrictive means, and may in the medium term pave the way for more radical deregulation of traditional media.
Given the importance of the challenges involved, and the real risk of undermining the fundamental principles of audiovisual law, the French Superior Audiovisual Council therefore considers it essential to establish a specific definition and a minimum legal manager applicable to all online services whose content can be assimilated for the public to that of radio and television services.

Article 2: role of the French Superior Audiovisual Council with regard to online services
The draft legislation specifies (article 43-6-1 of the 1986 law, introduced by article 2 of the draft legislation) that the provisions of the chapter of the 1986 law dedicated to online public communication services are applicable, "as are articles 17 and 41-4", which deal with competition and concentration in the audiovisual industry.
This last clarification can only be interpreted as restricting, for online public communication, the powers currently vested in the Conseil for all audiovisuel communication services.
Indeed, since only articles 17 and 41-4 are expressly referred to for online public communication services, it can be deduced a contrario that they would no longer apply to them:
- Article 1, which enables the French Superior Audiovisual Council to issue notices to publishers and distributors of audiovisual communication services, and which lays down the principles and objectives that justify infringement of the freedom of communication;
- nor article 15, on the protection of young people, the first paragraph of which applies to all audiovisual communication services.
The wording chosen thus appears to be a source of ambiguity and deserves to be clarified. The Conseil considers that Articles 1 and 15, which are very general in scope and aim to ensure a high level of protection for objectives of general interest, should apply to online public communication services, which for the public can be assimilated to radio and television services. In particular, it considers that it has particular legitimacy with regard to the protection of children and adolescents, and respect for the dignity of the individual, which would justify it being able to issue notices on this subject to publishers of online public communication services. Such notices could, in particular, encourage optimum use of the filtering schemes provided for in article 43-7 of the law of September 30, 1986.
The French Superior Audiovisual Council is aware of the prospects for development of high-speed Internet television services, and notes the disadvantages of a total absence of regulation for content shown on the Internet, particularly with regard to abiding by the principles set out in article 1 of the law of September 30, 1986 (respect for human dignity, the freedom and property of others, plurality in the expression of thought and opinion; the need to develop a national audiovisual production industry).
This situation, which has already been pointed out as a source of inequality of treatment and as a potential source of circumvention strategies, is also reflected in the regulation of radio and television services. For example, the ease with which minors can access programs harmful to them on the Internet is sometimes invoked to challenge restrictions on the diffusion of such programs on television, where they are nonetheless governed by time bans and the use of dubbing, which is currently being strengthened.
In this respect, the French Superior Audiovisual Council points out that the "e-commerce" directive does indeed promote self-regulation of information society services, but in a way that does not exclude giving the public authorities of the Member States a role of impetus and supervision in this field.
It therefore seems entirely possible, when transposing this directive, to entrust the regulator with a mission that could range from self-regulation to direct regulation of harmful or unlawful content, notably in the form of notices. This would enable the French Superior Audiovisual Council to act as a driving force and encourage the production of codes of good conduct in areas where the "electronic commerce" directive and the notice of September 24, 1998 (1) encourage member states to take this kind of initiative.
The Council is nevertheless aware of the limits and difficulties of implementing a national regulation scheme for a mode of communication that ignores national borders.
As far as articles 17 and 41-4 are concerned, the Conseil considers that their application to online public communication services is perfectly suited to dealing with any risks of restrictive or anti-competitive practices. The implementation of concentration strategies can distort competition in terms of access to content or access to customers for services distributed over digital networks. Abiding by the principle of plurality enshrined in article 1 of the 1986 law also requires effective and fair competition between network operators and online service editors.

Article 10: Online advertising
The French Superior Audiovisual Council approves the reinstatement of the obligation to present advertising as such, while being aware that its concrete implementation on websites is likely to suffer from difficulties and that its scope is limited by the absence of penal sanctions (whereas such sanctions exist for the written press).

II - SATELLITE SCHEMES

Articles 35 to 37 of the draft legislation set out the rules applicable to satellite schemes, and make them subject to authorization by the minister responsible for telecommunications.
These telecommunications infrastructures may, a priori, be used for both telecommunications and audiovisual communication services, and may involve satellite frequencies assigned to both telecommunications and radio broadcasting. The French Superior Audiovisual Council is the guarantor of freedom of communication, and considers that it should be involved in the authorization proceedings as soon as satellite frequencies for radio broadcasting and satellite television are concerned. In the explanatory memorandum alone, he notes a description of the authorization proceedings, which includes consultation of the assigning authorities by the Agence nationale des fréquences. He considers it necessary to establish the principle of French Superior Audiovisual Council assent in the scheme itself, in cases where the authorization proceedings have an impact on the exercise of freedom of communication.

(1) Council Recommendation of September 24, 1998 on the development of the competitiveness of the European audiovisual and information services industry by promoting national managers aiming to ensure a comparable and effective level of protection for persons under 18 and human dignity.