Opinion no. 2017-05 of February 22, 2017 on the draft decree amending the specifications of the national program companies France Télévisions, Radio France and the company in charge of France's external audiovisuel.

The French Superior Audiovisual Council,

Having regard to Act no. 86-1067 of September 30, 1986, as amended, on freedom of communication, in particular articles 9 and 48;

Having regard to the decree of November 13, 1987 approving the specifications of the missions and obligations of Radio France and the Institut national de l'audiovisuel;

Vu le décret n° 2009-796 du 23 juin 2009 fixant le cahier des charges de la société nationale de programme France Télévisions ;

Vu le décret n° 2012-85 du 25 janvier 2012 fixant le cahier des charges de la société nationale de programme en charge de l'audiovisuel extérieur de la France ;

Having regard to the submission of a case before the court by the French Ministry of culture and communication on January 2, 2017 concerning a draft decree amending the specifications of the national program companies France Télévisions, Radio France and the company in charge of audiovisuel extérieur de la France;

Having regard to the amending submission of the French Ministry of culture and communication of February 6, 2017 concerning a draft decree amending the specifications of the national program companies France Télévisions, Radio France and the société en charge de l'audiovisuel extérieur de la France;

Having deliberated on February 22, 2017,

Issues the following opinion, which concerns, on the one hand, the operating rules of the committees relating to the honesty, independence and plurality of news and programs and, on the other hand, the strengthening of the provisions of the France Télévisions specifications with regard to respect for rights and freedoms. It reserves the right to comment at a later date on other proposals to amend the specifications of national program companies covered by the aforementioned January 2 and February 6 submissions of a case before the court, as well as on other issues likely to fall within the scope of these specifications:

Law no. 2016-1524 of November 14, 2016 aimed at strengthening the freedom, independence and plurality of the media introduced an article 30-8 into the law of September 30, 1986, which makes provision for a committee relating to the honesty, independence and plurality of information and programs made up of independent personalities to be set up with any provider of generalist radio with a national vocation or television that shows political and general news programmes by terrestrial hertzian means.

The amendments to the specifications of the national program companies proposed by the Government are designed in particular to define the operating procedures of these committees.

The Conseil notes that other provisions of the aforementioned law are intended to apply to both public and private broadcasters, and therefore reserves the right to issue general rules likely to apply to national program companies.

Concerning the setting up of committees on the honesty, independence and plurality of news and programs

The Conseil notes that ethics committees are a central part of the scheme intended by the legislator. For this reason, it wishes to make a number of comments and proposals to improve their operation and guarantee their effectiveness.

The Council takes note of the choice made in the draft decree to create one committee per national program company. It considers, however, that when a company or group publishes a large number of diffusion centers, it might be useful not to limit itself to a single body. It also considers that it would be justified to set up a specific committee for each all-news service, given the specific nature of the programming for this type of service with regard to the objectives set out in the law.

The draft text makes provision for each committee to be made up of five members, appointed by the Board of Directors, which designates the Chairman from among its members. The Board considers that the number of members should be higher, given the wide-ranging nature of the committee's remit. Furthermore, it considers it preferable that the members of the Committee, who are independent of the publisher by law, should themselves be responsible for appointing their Chairman. In addition, it seems desirable that the same person should not hold more than two consecutive mandates, in order to reconcile continuity and renewal in the composition of these bodies.

To complete the list of cases and procedures for dismissing members, the Board suggests that the Committee should be able to propose to the Board of Directors that it terminate the term of office of a member who fails to meet the independence criteria set out in the second paragraph of article 30-8. Provision could also be made for one of its members to be removed from office at the Committee's request in the event of repeated absences.

The draft decree gives the company's Board of Directors the option of granting an indemnity to Committee members. The Board considers that this indemnity, which constitutes a form of remuneration, is incompatible with the independence that goes with their status.

The text makes provision for the Committee to meet at least once every half calendar year, although meetings may also be organized at the request of its Chairman or a majority of its members. In view of the importance of the tasks entrusted to it and the number of submissions of a case before the court that it is likely to have to deal with, particularly when it has jurisdiction over several diffusion poles, it seems essential that more regular meetings be scheduled. The Board therefore proposes that the Committee meet at least once a quarter. To ensure that the Committee's role is effective, it also proposes that any of its members should be able to demand that an item be placed on the agenda for a meeting.

Lastly, the draft decree makes provision for the Committee to hear any person it deems appropriate to enlighten it. The Council also proposes that the Committee be given access to any document likely to shed light on its work or research, while abiding by the confidentiality provisions of the law.

The Council also proposes the following additions to the draft decree.

First of all, it considers it necessary to ensure that the proceedings conducted by the committee guarantee confidentiality, particularly with regard to governing bodies. The following provision could thus be usefully retained: " It guarantees the anonymity of any person who summons the committee if that person so demands. "

In addition, the publication schedule and content of the annual report could be specified in the following terms:

" The annual report must be published within 3 months of the end of the previous year. In particular, it reports on the number of requests handled during the year, the number of case handled by the French Superior Audiovisual Council, and the results of the committee's deliberations. It draws up a statement of the means made available to the committee, and describes any difficulties of any kind that the committee may encounter in carrying out its duties ".

Lastly, the Council considers that offering the Committee the possibility of publishing some of its decisions could contribute to the effectiveness of its action.

With regard to strengthening the provisions of France Télévisions' terms of reference concerning respect for rights and freedoms

The Council approves the amendments to articles 35 and 36 of France Télévisions' specifications made by articles 6 and 8 of the draft decree, which correspond to the proposals it made in its opinion no. 2016-9 of May 4, 2016.

However, the Council proposes that the wording of article 8 of the draft decree be clarified. Indeed, the text appearing in 2° of article 8, presented as an addition, already appears in 5° of article 36 of France Télévisions' specifications. As it does not appear useful to change the order of the paragraphs of article 36, it proposes that article 8, 2° of the draft decree be deleted.

This notice will be published in the Journal officiel de la République française.

Paris, February 22, 2017

For the French Superior Audiovisual Council :
Le Président,
Olivier SCHRAMECK