Case Summary and Outcome

The Council of State of France (Conseil d’État) ordered a stay of execution of a decision from the President of the Audiovisual and Digital Communication Regulatory Authority (”ARCOM”) that refused to grant a request to initiate formal notice proceedings against the French company Eutelsat SA to cease broadcasting three Russian channels. The channels, “Rossiya 1”, “Perviy Kanal” and “NTV,” were broadcasting programs whose content was considered to be violative of human dignity, inciting hatred and violence against certain populations and minorities, legitimizing the illegal intervention of the Russian army in Ukraine and not presenting diverse viewpoints. It also ordered ARCOM to reconsider the initial request. The stay of execution request was brought before the summary judge of the Council of State by the association Reporters Without Borders (Reporters sans frontières) after ARCOM refused their request on the grounds that the television services concerned did not fall within the jurisdiction of France. The Court considered that the urgency conditions for a stay of execution were met in light of the reality, timeliness, and extent of the harmful consequences likely to result from the broadcast of the disputed programs to the audiences who receive them. It also found that there were grounds capable of creating serious doubt as to the legality of the decision by stating that ARCOM did not examine whether its jurisdiction could be based on legal provisions reflecting the jurisdictional criteria under the European Convention on Transfrontier Television.

Facts

Reporters Sans Frontières (RSF), the claimant in the case, is a non-profit association which is recognized as a public interest organization or “public utility” with a special legal status in France. On September 8, 2022 RSF requested the French Audiovisual and Digital Communication Regulatory Authority (ARCOM) to give formal notice to the limited company Eutelsat, a satellite network operator established in France, to cease broadcasting the Russian television channels Rossiya 1, Perviy Kanal and NTV, distributed by the NTV+ and Trikolor platforms, on the grounds that they broadcast content that was illegal under French law. They alleged the content violated human dignity, incited hatred and violence against certain populations and minorities, and legitimized the illegal intervention of the Russian army in Ukraine and did not guarantee pluralism of thought and opinion as mandated.

According to the law of September 30, 1986, relating to freedom of communication, ARCOM guarantees honesty, independence, and the pluralism of information in its programming, and it further supports the fight against discrimination in the field of audiovisual communication. It ensures respect for the dignity of the person in the programs made available to the public by audiovisual communication services. That includes ensuring that programming does not contain or incite hatred or violence based on any of the grounds included in Article 21 of the Charter of Fundamental Rights of the European Union, nor provoke the public to commit the offenses mentioned in Articles 421-2-5 and 421-2 -5-1 of the penal code. Furthermore, ARCOM may, where applicable at the request of “public utility” organizations in France mandated to defend freedom of information, put broadcasters and distributors of audiovisual communication services and satellite network operators on notice to respect the obligations imposed on them by legislative and regulatory texts and by the principles defined in the law.

On September 29, 2022, ARCOM refused RSA’s request to take action against Eutelsat SA by considering that the television services concerned did not fall within the jurisdiction of France. RSA then filed a stay of execution against this decision before the Council of State.

Decision Overview

The summary proceedings judge of the Council of State delivered the judgment in this case. The central issue for the Court was whether ARCOM had jurisdiction to act on RSF’s request to give formal notice to Eutelsat SA to cease broadcasting the Russian television channels due to alleged violations of human dignity, incitement to hatred and violence, and non-compliance with pluralism principles. Similarly, the Court had to assess on these grounds whether the conditions for a stay of the execution were met, namely, that there were grounds capable of creating serious doubt as to the legality of the decision and that the urgency justified it.

RSF argued that ARCOM had jurisdiction to issue formal notice against Eutelsat SA based on the provisions of article e 43-4 of the law of September 30, 1986. It further argued that 2° of article 43-4 of the law of September 30, 1986 is contrary to the Audiovisual Media Services directive “AMS”  of March 10, 2010 insofar as it subordinates the jurisdiction of France, for television services using a capacity satellite network under France, on the condition that these services do not use an uplink from a station located in another Member State of the European Union or another State party to the Agreement on the European Economic Area. On this ground, RSF claimed that there was serious doubt as to the legality of the contested decision. On the urgency condition, RFS argued that it was satisfied when, on the one hand, the contested decision was likely to cause substantial and lasting harm to the interests it defends as well as to the public interests linked to the protection of the rights conferred by the legal order of the European Union as well as the prohibition of the use of force against the territorial integrity of a State and, on the other hand, the attack on the interests in question was of an immediate nature.

In turn, both ARCOM and Eutelsat filed defense briefs rejecting RSF’s arguments and claiming that the urgency condition was not met and that the arguments that were put forth by RSF were unfounded. ARCOM and Eutelsat submitted that the request should be rejected.

First, the Council of State was satisfied that the urgency conditions were met in this case. It reasoned that neither ARCOM nor the Eutelsat company seriously contest the reality, timeliness and extent of the harmful consequences likely to result from the broadcast of the disputed channels to the audiences who receive them. The Court rejected ARCOM’s claim that its decision did not in itself undermine the public interests invoked by the applicant association, linked to the protection of the rights conferred by the European Union legal order, namely human dignity, the principle of non-discrimination, freedom of expression and information, as well as the prohibition of the use of force against the territorial integrity of a State. Rather the Court found that the decision of refusal hindered the exercise of the prerogatives recognized by the Law of 30 December 1986 concerning not only national regulatory agencies, including the prohibition of the use of force against the territorial integrity of a State, but also the obligations of the satellite operator Eutelsat which broadcasts the channels in question.

The Court then proceeded to analyze whether there was serious doubt as to the legality of the contested decision. In that regard, it focused on the issue of whether ARCOM had jurisdiction to issue formal notice against Eutelsat SA concerning the Russian television services. First, the Court looked at ARCOM’s jurisdiction under the law of the European Union, in particular, the Audiovisual Media Services (SMA) Directive Directive 2010/13/EU and the law of September 30, 1986 which transposes many of its provisions. After revisiting the jurisdiction criteria outlined in these provisions, the Court considered that “neither that directive nor the national provisions adopted for their transposition, in particular articles 43-3 to 43-5 of the Law of 30 September 1986, appear, at the stage of the investigation, to be applicable to this dispute.” [para. 12]

The Court then analyzed whether ARCOM had jurisdiction under France’s international treaties, particularly, the European Convention on Transfrontier Television (ECTT) and the corresponding French law, article 43-6 of the French law of September 30, 1986. Concerning the ECTT, the Court stated that paragraph 1 of Article 5 provides that each transmitting State shall ensure that all program services transmitted by a broadcaster under its jurisdiction comply with the stipulations of the Convention. In the subsequent paragraph 2 of the same article, the Convention attributes jurisdiction to the State in which the broadcaster is established, within the meaning of paragraph 3 which specifies these rules of establishment, or, failing that, to the broadcaster to which paragraph 4 applies. According to this paragraph 4, the competent State is the one which has granted a frequency used by the broadcaster or, failing that, the one responsible for the satellite capacity used or, failing that again, the State from which the uplink to the satellite used originates. According to paragraph 6 of the same article, this convention “does not apply to television broadcasts exclusively intended to be received in States which are not Parties to this Convention, and which are not received directly or indirectly by the public of “one or more Parties.” The Court reasoned that it follows from paragraph 1 of Article 27 of the same Convention that the Member States of the European Union only apply the rules arising from the Convention to the extent that there is no rule of Union law governing the particular subject concerned.

The Court then recalled that Article 43-6 of the law of September 30, 1986 is “applicable to television services whose broadcaster falls under the jurisdiction of France, according to the criteria provided for by the European Convention of May 5 1989 on cross-border television, and is received by the States parties to this convention which are not members of the European Community”. In light of these provisions, the Court found that ARCOM’s decision did not examine whether its jurisdiction could be based on the provisions of article 43-6 of the law of September 30, 1986 and the stipulations of article 5 of the Convention of May 5, 1989. Specifically, it did not take into account 1) that Ukraine is a party to the Convention, unlike Belarus and Russia where the broadcasters responsible for these services are established; 2) the conditions under which the disputed television services are distributed and broadcast in the Ukrainian territories annexed by Russia in 2014 and 2022; and 3) that the satellite capacity used for the broadcasting falls under the jurisdiction of France, which is also a party to the same agreement. According to the Court, ”Under these conditions, the argument based on the fact that ARCOM disregarded the provisions of article 43-6 of the law of September 30, 1986 and the stipulations of article 5 of the agreement of May 5, 1989 is, in the state of the investigation, such as to create serious doubt as to the legality of the contested decision.” [para. 15]

In conclusion, The Council of State of France ordered a stay of execution of ARCOM’s decision, and ordered ARCOM to reconsider the request in light of the Council’s findings.