Opinion no. 2017-06 of March 15, 2017 on the modification of 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;

Law no. 2016-1524 of November 14, 2016 aimed at strengthening the freedom, independence and plurality of the media;

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;

Pursuant to Articles 9 and 48 of Law no. 86-1067 of September 30, 1986 on freedom of communication, the French Ministry of culture and communication referred to the Conseil for an opinion, by letters dated January 2 and February 6, 2017, on 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.The main purpose of these amendments is to enable the establishment of committees relating to the honesty, independence and plurality of news and programs provided for by Law n°2016-1524 of November 14, 2016 aimed at strengthening the freedom, independence and plurality of the media.

With regard to the establishment of the above-mentioned committees, the Board made observations in its opinion n°2017-05 of February 22, 2017.

With regard to the other amendments to the specifications of the various national program companies provided for in the draft decree, the Council, after deliberating on March 15, 2017, issued a favorable opinion with the following observations:

Concerning changes to certain editorial lines

• Concerning changes to the missions assigned to certain France Télévisions channels

The Council takes note of the amendments to article 3 of France Télévisions' specifications introduced by article 2 of the draft decree. Essentially, they clarify the missions and editorial positioning of France 4 and France Ô.

France 4 is now defined as a youth and family channel, with a special focus on French animation. France Ô, on the other hand, is characterized as the overseas France channel, offering programs that promote sharing and knowledge of the identity and news of the French overseas territories.

The Board approves the clarification of the missions devolved to France 4 and France Ô, which responds to the observations it made when drawing up the four-year review of France Télévisions' results in December 2014. It reflects the orientations of the strategic project of the President of France Télévisions, taken up in the contract of objectives and means concluded between France Télévisions and the State for the period 2016-2020.

However, the Council considers that the wording of Article 2 of the draft decree could be clarified to further strengthen the specific nature of public television.

With regard to 1° of article 2 of the draft decree, which states that France 4 " contributes to strengthening the link between generations ", the Conseil notes that the aim is to specify the family orientation of the channel's programming by encouraging the diffusion of programs that can be shared by children, youngsters and their parents. In this respect, the Conseil considers that a very slight editorial change would make it possible to clarify the reference to the audiences targeted by France 4, " a youth and family channel, whose vocation is to address children, youngsters and their parents, helping to strengthen the link between these generations (...) ".

The Conseil considers that France 4, in line with its new editorial line and following the example of the Gulli and 6ter channels, could be summoned to make a commitment by not showing any category III programs (not recommended for children under twelve) or trailers for programs in this category before 10 p.m. from 2018.

The Council is therefore proposing an amendment to France Télévisions' specifications, specifying at the end and following the second paragraph of article 36 on human dignity and the protection of minors: " On France 4, category III programs and trailers for programs in this category may only be shown after 10 p.m. as of 2018. Even before this scheme comes into force, France 4 will ensure that it does not show cinematographic works banned for persons under 18 before 10 p.m. ".

Article 2(1) of the draft decree also stipulates that " France 4's programming promotes awareness, curiosity and citizenship by combining an educational approach with entertainment ". In the Council's view, it could be made clear that these objectives are particularly reflected in programs aimed at youngsters.

In addition, France 4, as a result of this new editorial positioning and in line with France Télévisions' media education missions, should contribute to promoting access to an information supply aimed at youngsters.

The Council therefore proposes adding the following to article 15 of France Télévisions' media literacy specifications: " France 4 regularly provides a supply of news programmes for younger viewers ".

Article 2° of the draft decree introduces a new provision in France Télévisions' specifications, 5°bis, relating to France Ô. The proposed wording does not specify the channel's diffusion zone, unlike the overseas France¹ network. To better define the complementary missions of France Ô and the channels of the Outre-mer^1ère network, the Conseil suggests specifying in the last paragraph of article 2° that France Ô is shown in mainland and overseas France.

• Changes to France Médias Monde's missions

Article 19 of the draft decree proposes an amendment to article 2 of the specifications of the national program company in charge of France's external audiovisual services, concerning " the editorial identity of audiovisual communication services ", in order to introduce the forthcoming diffusion of France 24 in Spanish.

The Board takes note of the faithful translation in the specifications of a fourth language of diffusion in accordance with the commitments entered into between France Médias Monde and the authorities in the contract of objectives and means for the period 2016-2020.

The wording of the draft decree does not summon any further comments.

Changes concerning production

Articles 5 and 9 of the draft decree amend article 9 of France Télévisions' specifications and introduce a new appendix to take into account the agreement reached between France Télévisions and producers' and distributors' organizations on May 24, 2016.

This agreement concerns the conditions for negotiating marketing mandates and secondary rights, the acquisition by France Télévisions of marketing mandates when the producer has production capacity or a framework agreement with a distributor, and the terms and conditions for exploiting the work's diffusion rights in the event of repurchase at the end of the initial period of the transferred diffusion rights.

The proposed amendment to the specifications allows for the implementation of the April 2015 reform of decree no. 2010-747 of July 2, 2010, which authorizes the conditional inclusion, within the contribution to the development of audiovisual production, of expenditure on producer's shares to support " independent production ". The appendix introduced to France Télévisions' terms and conditions incorporates the stipulations of the May 24, 2016 agreement committing France Télévisions to its relations with producers and distributors.

The changes proposed by the Government, which are in line with the provisions of the decree and the May 24, 2016 agreement signed by France Télévisions, do not summon any particular comments from the Conseil.

Updating the names of service editors and service companies

The changes provided for in articles 3 and 4 and articles 12 to 17 of the draft decree do not summon any comments from the Conseil.

• Concerning RFI's diffusion

With regard to RFI's diffusion, the Council welcomes the fact that the draft decree takes account of RFI's broadcasting on two FM band frequencies in French Guiana.

The draft decree extends the possibility of FM broadcasting to the whole of French Guiana, which until now has been very limited. Given the saturation of the FM band, as mentioned in the objectives and means contract of the national program company, it is becoming increasingly difficult to free up new frequencies in this band, particularly in major cities: the extension of RFI's FM coverage does not seem assured. It is therefore advisable to take advantage of the possibilities offered by digital terrestrial radio, particularly in mainland France, as provided for in the contract of objectives and means, to extend RFI's coverage.

Finally, the Conseil emphasizes that the draft decree does not take into account all the French frequencies operated by RFI or on which RFI is authorized:

• the 11.72748 GHz frequency for satellite radio broadcasting (decision no. 89-51 of April 20, 1989 modified);
• seasonal schedules in the short-wave range, which are allocated to the Conseil by the national frequency band allocation table, and which enable us to serve mainly foreign countries, but also a priori part of the territory of the French Republic.

RFI's shortwave diffusion could be explicitly provided for by inserting a new paragraph after the third paragraph of article 7 of the specifications:

" With regard to frequencies under French jurisdiction that would enable the RFI service to be broadcast abroad and possibly on part of the territory of the Republic, this service is shown in French and foreign languages by application of article 26 of the aforementioned law of September 30, 1986 when these frequencies are assigned to the French Superior Audiovisual Council and taking into account the specific features of these frequencies, in terms of propagation characteristics, management and international coordination. "

With regard to the French Superior Audiovisual Council's additional proposals

• With regard to shortcomings in specifications concerning women's rights and diversity

With regard to diversity, the Conseil believes that article 37 of France Télévisions' current specifications, as well as article 23 of France Médias Monde's, should be clarified and explicitly mention the notion of fight agains discrimination and stereotypes, following the example of the existing mention in Radio France's missions and specifications. For example, the following sentence could be added after the subtitle "The fight against discrimination and the representation of diversity on air":

" The company participates in actions to promote social cohesion and fight discrimination and stereotypes. To this end, it undertakes to conduct an annual campaign to promote diversity.

In addition, it is proposed to add the following to the current article 5-1 of Radio France's specifications: at the end of the first sentence of the article: " [...] and stereotypes. To this end, it undertakes to conduct an annual campaign to promote diversity ", and at the end of the article: " Within the framework of the French Superior Audiovisual Council's notices, the company implements actions to improve the representation of diversity of French society ", so that the Council's notices are directly applicable to Radio France.

With regard to women's rights, the Conseil believes that the specifications of France Télévisions, Radio France and France Médias Monde could be supplemented, in particular to include the Conseil's notices in this area. For example, the following article on the representation of women could be incorporated into their respective specifications:

" Within the framework of the French Superior Audiovisual Council's notices, the company implements actions to improve the representation of women, to achieve parity, and to watch over their image, notably by fighting stereotypes, sexist prejudices, degrading images, violence against women and violence committed within couples. It also makes a particular effort to ensure the fair representation of women "experts" .

Finally, in compliance with its contract of objectives and means, the company ensures that it meets its objectives concerning equality between women and men. "

With regard to France Télévisions, the words " which must achieve parity by 2020 " could also be added at the end of the first paragraph.

With regard to Radio France, the last part of the article could also be worded as follows: " [...] Lastly, the company shall ensure that it meets its gender equality objectives set where appropriate in its contract of objectives and means. "

Lastly, articles 5 for Radio France and 21 for France Médias Monde could be marginally amended, with the deletion of the phrase " equality between women and men ", which would be included in the newly-created article.

• Regarding the shortcomings of Radio France's terms of reference in terms of respect for rights and freedoms

The Conseil considers that Radio France's specifications would benefit from being supplemented. It regrets that the draft decree does not make provision for remedying these shortcomings, which it has highlighted in previous opinions.

The Government could be asked to supplement the draft decree in order to strengthen the schemes set out in article 4 of Radio France's specifications with regard to respect for rights and freedoms, by adopting and adapting, where appropriate, the provisions of France Télévisions' specifications applicable in this area.

Accordingly, article 4 of Radio France's specifications could be supplemented as follows:

" In compliance with the principle of equal treatment and the notices issued by the French Superior Audiovisual Council, Radio France ensures the honesty, transparency, independence and plurality of information, as well as the pluralistic expression of currents of thought and opinion.

It does not use techniques likely to impair listeners' understanding. Controversial issues must be presented honestly, and the expression of different points of view must be ensured.

The use of sound recording techniques without the knowledge of the persons being recorded must be limited to the needs of public information. It must be restricted to cases where it enables information to be obtained that would otherwise be difficult to obtain. The public must be informed of the use of these procedures. It must not be possible to identify individuals, except in exceptional circumstances or where consent has been obtained prior to diffusion.

In news programmes, the company refrains from using technological processes to modify the meaning and content of sounds or words. In other programs, the public is warned against the use of such processes when their use could lead to confusion.

The company demonstrates rigor in the presentation and processing of information. It verifies the validity and sources of information. Uncertain information is presented in the conditional tense, and care is taken to ensure that the context in which sounds have been collected is appropriate to the subject they illustrate. Any use of archive material is announced on air. Sounds or words produced for the purpose of reconstructing or scripting real events, or supposedly real events, must be presented as such to the listeners. Subject to caricature or pastiche, when sounds are edited, they must not distort the original meaning of the words collected, nor mislead the listener.

Respecting the right to information, the diffusion of programs, sounds, comments or documents relating to judicial proceedings or to facts likely to give rise to judicial information requires that particular attention be paid to respecting the presumption of innocence, i.e. that a person not yet dismissed be not presented as guilty, to the secrecy of private life and to the anonymity of persons under 18. In the presentation of legal decisions, the company ensures that comments are not made in a way that could undermine the authority or independence of the judiciary.

When an ongoing judicial procedure is mentioned on air, the company must ensure, in the overall treatment of the case, that :

• the case is treated with moderation, rigor and honesty ;
• treatment of the case does not interfere with the proceedings;
• plurality is ensured through the presentation of the different points of view, in particular by ensuring that the parties involved or their representatives are given the opportunity to make their point of view known.

"The company shall ensure that its programs do not encourage dangerous, delinquent or uncivil behavior or practices.

The company shall at all times retain control of its broadcasting in accordance with its internal control scheme ".

Article 5 of Radio France's terms of reference could be supplemented with these schemes:

" The company abides by personal rights relating to privacy, image, honor and reputation as defined by law and jurisprudence.

In particular, the company ensures that :

- to show restraint in the diffusion of sounds, words or testimonies likely to humiliate people;

- to avoid complacency in the evocation of human suffering, as well as any treatment that degrades or objectifies the individual:

- to ensure that people's testimony on matters relating to their private lives is only taken with their informed consent.

It demonstrates restraint when diffusing information concerning a victim or a person in danger or distress ".

• Regarding the inadequacy of France Télévisions' cultural supply specifications

The place of culture, and in particular live performances, on public television is a strong marker of the differentiation of France Télévisions' editorial supply from that of private broadcasters.

Although France Télévisions complies with its specifications, the Conseil has often deplored the lack of exposure given to certain cultural programme types, particularly musical and theatrical performances. However, the televising of artistic performances contributes to the democratization of culture. In this respect, public television has a major responsibility and an important role to play, as it must aspire to reduce the difficulties of access to culture and leisure by reducing social and territorial inequalities.

Article 6 of France Télévisions' terms of reference specifies the minimum number of lyrical, choreographic and dramatic performances to be shown. This minimum number is combined with a " points " weighting scheme to encourage shows to be first broadcast in the first half of the evening, and secondly during the day, so as to avoid this obligation being fulfilled only at late hours.

As it analyzed in detail on the occasion of the publication of its report on the execution of France Télévisions' specifications for 2015, and previously in July 2014 in a study on the public group's cultural supply, the Conseil considers that the scheme in Article 6 no longer meets the objective set. In 2015, show and concert broadcasts were largely diffused between midnight and six in the morning (88% of France Ô's show supply; 87% of France 2's; 86% of France 3's supply and 77% of France 4's shows and concerts were diffused in this time segment). Thus, the "points" incentive scheme does not prevent the vast majority of the obligation to broadcast shows from being carried out at late hours.

The Council accepts, however, that the scope and definition of shows eligible under this obligation represent a high standard for France Télévisions, since only a limited number of shows are selected. These are essentially theater, opera or classical or contemporary dance shows produced in public and broadcast in their entirety.

Nevertheless, the Conseil considers that the " points spectacles " scheme set out in the specifications should be developed to make it more effective.

The Council invites the authorities to modify article 6 in order to strengthen its effectiveness. It therefore hopes that this obligation will be completed and modified so that its translation into programming terms meets the requirements of the missions entrusted to public television.

The Board proposes that article 6 be completed as follows:

" Through programming distributed evenly between France 2, France 3, France 4 and France Ô, France Télévisions promotes the various forms of theatrical, lyrical and choreographic expression, and reports on current events. Theater is regularly broadcast live on the company's national services.

France Télévisions shows lyrical, choreographic and dramatic performances, classical music concerts and recitals, as well as programs lasting at least 30 minutes each, which present extracts from such performances and place the works in their historical context and dramatic continuity. France Télévisions ensures that this programming treats these different genres equally. These shows are :

• produced by theaters, festivals and cultural organizations ;
• specially created or recreated for television and performed by professional artists;
• or presented as part of exceptional events, such as concerts or special events, and performed by professional artists.

Among the shows listed above, France Télévisions is committed to promoting concerts given by the Orchestre national de France, the Orchestre philharmonique de Radio France and the Chœur et Maîtrise de Radio France.

The company's Board of Directors sets an annual obligation to broadcast these shows using the following method:

• when the diffusion takes place in the first part of the evening, on Saturday afternoons, Sundays, school vacations and public holidays, it is valued at three points;
• when the broadcast begins between 10 a.m. and 10.45 p.m. and cannot be valued at three points, it is valued at two points;
• for other days and times, the diffusion is valued at one point.

The company's annual obligation to broadcast may not be less than 150 points, at least 50% of which must be accounted for by shows and programs valued at 2 or 3 points ".

• Ensuring compliance with Radio France's contractual obligations

Radio France's contract specifications make provision for the company's annual report to be sent to the Minister of Communication and the French Superior Audiovisual Council by June 30. The Conseil would like to receive reports on the implementation of the mission statement and specifications for the coming years closer to the end of the financial year in question. It therefore proposes that the transmission date be aligned with that of other national program companies, i.e. April 30 rather than June 30.

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

Paris, March 15, 2017

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