Case Summary and Outcome

The European Court of Human Rights (ECtHR) unanimously held that the sanctions imposed on a broadcasting company for airing inappropriate and discriminatory content did not violate the right to freedom of speech guaranteed in Article 10 of the European Convention on Human Rights (ECHR). The Conseil supérieur de l’audiovisuel (CSA), the French broadcasting authority, imposed monetary fines and advertisement-related sanctions against C8, the applicant company, for violations of French broadcasting law arising from two segments of the show Touche pas à mon poste. The ECtHR rejected the application of C8, based on Article 10 of the ECHR, and affirmed the decisions issued by the Conseil d’État. The ECtHR ruled that although the sanctions interfered with the applicant company’s freedom of expression, such interferences were justified because they were prescribed by law and necessary in a democratic society to pursue a legitimate aim, namely the protection of the reputation or rights of others. Here, the first segment at issue trivialized degrading images of women, and the second one stigmatized homosexual men and infringed on the right to privacy of the deceived individuals. Moreover, the segments did not convey any information, opinion, or idea contributing to debates on questions of public interest, and were aired by C8 purely for entertainment purposes in a commercial context. The ECtHR further concluded that the sanctions ordered by the CSA were proportional to the aim pursued by the state, having regard to the segments’ discriminatory content, negative impact on young audiences, and profit motive as well as the applicant company’s size and history of similar violations.

Facts

Touche pas à mon poste is an entertainment show that is particularly popular among minors and young adults. It is broadcast on C8, a generalist television channel. At the relevant time, Touche pas à mon poste aired live on weeknights and was rebroadcast during the day. The Conseil supérieur de l’audiovisuel (CSA) had issued formal notices of violations of French broadcasting law on multiple occasions before sanctioning C8 for the segments at issue. Prior violative conducts aired on Touche pas à mon poste included the streaming of a video of an individual removing the underwear of young women in public; humiliating comments by cast members regarding the photo of a child exhibited without his parents’ consent; and unwanted kisses on a woman’s breasts by a guest of the show after repeated refusals. 

The first segment at issue, which aired on December 7, 2016, purported to display what takes place behind the scenes of Touche pas à mon poste during an advertising break. The host and a blindfolded female commentator played a game in which he placed her hand on him and then asked her to guess which body part she was touching. The host began by putting the commentator’s hand on his chest and arm, before moving her hand on the crotch area of his pants. The commentator immediately reacted with astonishment. The commentator had not received prior notice of, or given her consent to, the sexual portion of the game. The CSA received over 3,000 complaints relating to this segment.

The second segment at issue aired on May 18, 2017. The host of Touche pas à mon poste published a bogus posting inviting sexual advances in which he described himself as a 26-year-old bisexual man named Jean-José. The segment consisted of prank calls with seven deceived individuals—six men and one woman. In playing the character of Jean-José, the host caricatured homosexual men by using a high-pitched voice and exaggerated manners. The host did not obtain consent from the individuals to make the calls public, and only three individuals were informed at the end of the exchange that their conversations were broadcast live on C8. None of the voices were altered. The individuals shared personal information with the host in the prank calls, and some of them made sexually explicit remarks. The CSA received over 25,000 complaints relating to this segment.

On June 7, 2017, the CSA ruled that the first segment at issue violated French broadcasting law. The CSA imposed a two-week ban on advertisement during the broadcasting of Touche pas à mon poste (as well as the 15-minute periods preceding and following the show), as authorized by France’s Act No. 86-1067. On July 26, 2017, the CSA issued a decision where it concluded that the second segment at issue also violated French broadcasting law. The CSA sanctioned this violation with a fine of €3M pursuant to the same statutory authority. C8 challenged both decisions before the Conseil d’État. On June 18, 2018, the Conseil d’État dismissed the application and affirmed the sanctions. On December 11 and 12, 2018, C8 brought two applications, under Article 34 of the European Convention on Human Rights (ECHR), to challenge the sanctions relating to the segments at issue before the European Court of Human Rights (ECtHR). 

Decision Overview

A seven-judge Chamber of the ECtHR (Fifth Section) considered whether the sanctions imposed by the CSA—on a broadcasting company after it aired inappropriate, stigmatizing, and discriminatory content—, subsequently confirmed by the Conseil d’État, violated C8’s right to freedom of expression under Article 10 of the ECHR. The ECtHR had to determine whether such interferences were justified within the meaning of Article 10 § 2 of the ECHR, which requires that the interferences be “provided by law,” pursue a legitimate aim, and be “necessary in a democratic society.” The government and C8 agreed that the sanctions were authorized under French broadcasting law and pursued a legitimate aim—namely, the protection of the reputation or rights of others. Nonetheless, the parties differed as to whether the necessity requirement was met in both instances. 

At the outset of its analysis, the ECtHR reiterated the general principles governing the necessity requirement, as summarized in NIT S.R.L. v. the Republic of Moldova, No. 28470/12, § 177, 5 April 2022. First, the Court mentioned, that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. It covers “information” or “ideas” that offend, shock, or disturb. The exceptions to freedom of expression under Article 10 § 2 must be construed strictly, and the need for any restrictions must be established convincingly. Second, the adjective “necessary” within the meaning of Article 10 § 2 implies the existence of a pressing social need. The contracting states have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision by the ECtHR, which is empowered to give the final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. Third, in exercising its supervisory jurisdiction, the ECtHR’s role is to look at the interference in light of the case as a whole and determine whether it was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it are relevant and sufficient. 

The ECtHR also underlined certain factors that were relevant to the necessity analysis in this context. Here, the ECtHR noted that the state benefits from a larger margin of appreciation because the segments at issue did not contribute to a debate on a question of public interest (Hachette Filipacchi Associés (Ici Paris) v. France, No. 12268/03, §§ 43 and 55, 23 July 2009), were of a commercial nature (Sekmadienis Ltd. v. Lithuania, No. 69317/14, §§ 73 and 76, 30 January 2018), and impacted the privacy rights of others under Article 8 of the ECHR (Perinçek v. Suisse, No. 27510/08, § 198, 15 October 2015). The fact that C8 benefited from procedural fairness guarantees before the Conseil d’État also played a role in the assessment of the proportionality of the sanctions imposed by the CSA. 

Concerning the first segment at issue, the ECtHR concluded that there was no reason to depart from the CSA’s analysis. The ECtHR underscored the CSA’s finding that the conduct of the host was degrading to women because it consisted of acts of a sexual character that were performed without explicit prior consent by the female commentator. The ECtHR further highlighted the hierarchical relationship between them in the working environment as well as the commentator’s astonishment following the sexual act. In the ECtHR’s view, the segment and the inappropriate comments it generated conveyed a negative and stereotyped image of women.

Concerning the second segment at issue, the ECtHR also approved the CSA’s decision to impose sanctions on C8. Considering the main object of the prank calls and the host’s conduct, the ECtHR noted that the second segment conveyed a stereotyped and stigmatizing image of homosexual people. The ECtHR stated that pluralism and democracy rest on the recognition and genuine respect for diversity, and that harmonious interactions between people with different identities are essential to social cohesion (Levickas v. Lithuania, No. 41288/15, § 107, 14 January 2020). Moreover, the ECtHR stressed that the live broadcasting of the prank calls infringed on the privacy rights of others. This is so, according to the ECtHR, because the deceived individuals shared intimate information regarding their sexual preferences and practices, and C8 neither obtained prior consent from them nor used mechanisms to prevent their identification. The ECtHR added that the contracting states have a positive obligation to guarantee the right to privacy under Article 8 of the ECHR, even in the relations between private individuals, as laid out in Söderman v. Sweden, No. 5786/08, § 78, 12 November 2013. The ECtHR concluded that, given the state’s margin of appreciation in balancing ECHR rights, the CSA provided sufficient reasons for its decision to give precedence to the privacy rights of the deceived individuals over C8’s freedom of expression.

As to the proportionality of the sanctions imposed by the CSA, the ECtHR ruled that their nature and effect were proportional to the aim of protecting the rights of others. The ECtHR noted that the severity of the sanctions was adequate in this case given their size relative to C8’s total revenues, the commercial context of the segments at issue, and C8’s decision to keep airing Touche pas à mon poste. Moreover, in the ECtHR’s view, the proportionality of the sanctions was further supported by the segments’ discriminatory content, lack of contribution to a public debate, and negative impact on young audiences as well as C8’s extensive history of prior ethical violations.