FRANCE

Expert assessment

This statement is essentially correct. In 2009, the Freedom of Communication Act of 1986 was amended to transpose elements of the EU Audiovisual Media Services Directive, which extended the CSA's authority over some areas of online and on-demand media services.58 However, the CSA's remit over online press extends to broadcasters' websites and Internet TV and radio but not to traditional print or their online news sites, which are largely self-regulated and under the supervision of the French courts. The amendments introduced in 2009 require domestic audiovisual media services—including Internet TV and video-on-demand (VoD)—to be licensed with the CSA and to adhere to the same content regulations as broadcasters, including provisions the protection of minors, respect for human dignity, and safeguarding public order.59 In December 2010, the CSA issued a decree further specifying its regulatory authority over on-demand audiovisual media in relation to protection of minors and the accessibility of programmes that may expose minors to harmful or illegal content.60 These measures are based on compliance with Article 12 of Directive 2010/13/EU of the European Parliament and the Council of 10 March 2010 "Audiovisual Media Services" Directive, which states that:

"Member States shall take appropriate measures to ensure that on-demand audiovisual media services provided by media service providers under their jurisdiction which might seriously impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see such on-demand audiovisual media services."61

The High Council for Broadcasting (Conseil supérieur de l'audiovisuel – CSA) is responsible for monitoring compliance with content and competition-related regulations contained in the Freedom of Communications Act of 1986, which has been amended many times, as well as in a number of additional laws and governmental decrees related to the broadcasting sector. Under the amended Freedom of Communications Act of 1986, online broadcasting and on-demand audiovisual media services that are not a retransmission of a program broadcast by a TVchannel are allowed to broadcast only after an agreement (in French, "une convention") is signed by the CSA and the media service provider.62 On-demand media services broadcasting on a network that does not use frequencies delivered by the CSA can broadcast freely and without the CSA's permission but are still obliged to uphold the regulations applicable to the audiovisual media sector.

Content regulations in the Freedom of Communication Act 1986 that apply to all audiovisual media service providers as describe above include provisions on respecting human dignity, the pluralism of opinion, and regulations safeguarding "law and order."63 That law also includes provisions on the defense of the French language requiring broadcasters to provide a certain proportion of French-language audiovisual material,64 and restrictions on content that could harm the physical, mental or moral development of minors, or materials that may cause "incitement to hatred or violence on the grounds of race, sex, morality, religion or nationality."65

The CSA does not oversee print or their online news sites, which are regulated by the Freedom of the Press Law of 1881, amended numerous times since, and supervised by the Ministry of Culture and Communications, the Ministry of Justice, and the French courts.66 That law contains particularly strict and often controversial provisions regarding defamation, which is a criminal offense under French law.67 All journalists are also bound to comply with provisions in the penal codes outlawing certain content, such as Holocaust denial.68 In general, however, print media in France have a strong tradition of self-regulation, following the codes of conduct adopted by the national union of journalists, as well as ethical codes adopted by individual newspapers, like those developed by Le Monde, Ouest-France, L'Express, Le Nouvel Observateur, Le Point, L'Equipe and La Tribune. More recently, online newspapers like Mediapart and Rue89 have also begun to develop ethical codes.

Although the CSA's particular remit does not include the online news media, efforts by French lawmakers to regulate Internet content has raised numerous controversies among freedom of expression advocates. French lawmakers for years have pursued aggressive measures to control the Internet in order to curb Internet piracy and hate speech and to protect minors from access to harmful content. In 2004, for instance, the Government introduced measures requiring ISPs to offer filtering tools for banned content and that holds ISPs responsible if illegal or harmful content is transmitted.69 In 2009, French lawmakers passed the controversial HADOPI Law that prohibits users from downloading pirated content and introduced a strict "three-strikes policy" that allows authorities to filter the web. It also established a separate regulatory body (the High Authority for Transmission of Creative Works and Copyright Protection on the Internet) to monitor compliance with these new regulations. More recently, in 2011, French Parliament passed the Loppsi Law, which allows the Government to censor and block websites which have pornographic or criminal content. Although enforcement of these rules primarily focuses on controlling pornographic material, hate speech and Internet piracy, these measures have been widely condemned by free press and Internet advocacy groups for threatening freedom of expression.

57 This example was cited by the Hungarian Government under both "Criticism 16" and "Criticism 19,"in "Criticisms and answers formulated on the subject of the proposed media act examined in a European context," Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/criticisms-and-answers-formulated-on-the-subject-of-the-proposed-media-act-examined-in-a-european-context 58 The Freedom of Communication Act (No. 86-1067 of 30 September 1986) not including 2009 amendments, available at: http://www.legifrance.gouv.fr/html/codes_traduits/libertecom.htm; an unofficial English-language translation of the Act number 2009-258 dated 5 March 2009, provided by the University of Luxembourg, can be accessed here: wwwfr.uni.lu/content/download/31271/371434/.../France_translation_1.pdf. 59 As per Article 1 of the Freedom of Communication Act, (No. 86-1067 of 30 September 1986) not including 2009 amendments, is available at: http://www.legifrance.gouv.fr/html/codes_traduits/libertecom.htm; an unofficial English-language translation of the Act number 2009-258 dated 5 March 2009, provided by the University of Luxembourg, can be accessed here: wwwfr.uni.lu/content/download/31271/371434/.../France_translation_1.pdf. 60 "Recommendations and deliberations of the CSA for the protection of minors," CSA, Deliberation of 14 December 2010 on the protection of young people, ethics and accessibility of programs on audiovisual media services on demand, http://www.csa.fr/infos/textes/textes_detail.php?id=132419 ; http://www.epra.org/content/english/news/f_archive.html. 61 Directive 2010/13/EU Of The European Parliament and of the Council of 10 March 2010 On The Coordination Of Certain Provisions Laid Down By Law, Regulation Or Administrative Action In Member States Concerning The Provision Of Audiovisual Media Services (Audiovisual Media Services Directive), Official Journal of the European Union, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:095:0001:0024:EN:PDF 62 Article 33(1) of the amended Freedom of Communications Act of 1986, (Act number 2009-258, 5 March 2009), translation provided by the University of Luxembourg, available at: wwwfr.uni.lu/content/download/31271/371434/.../France_translation_1.pdf. Translation by author. 63 Article 1 of the Freedom of Communications Act of 1986 (No. 86-1067 of 30 September 1986) not including 2009 amendments, available at: http://www.legifrance.gouv.fr/html/codes_traduits/libertecom.htm; an unofficial English-language translation of the Act number 2009-258 dated 5 March 2009, provided by the University of Luxembourg, available at: wwwfr.uni.lu/content/download/31271/371434/.../France_translation_1.pdf. 64 Article 1 of the Freedom of Communications Act of 1986 (No. 86-1067 of 30 September 1986) not including 2009 amendments, available at: http://www.legifrance.gouv.fr/html/codes_traduits/libertecom.htm; an unofficial English-language translation of the Act number 2009-258 dated 5 March 2009, provided by the University of Luxembourg, available at: wwwfr.uni.lu/content/download/31271/371434/.../France_translation_1.pdf. 65 Article 1 of the Freedom of Communications Act of 1986 (No. 86-1067 of 30 September 1986) not including 2009 amendments, available at: http://www.legifrance.gouv.fr/html/codes_traduits/libertecom.htm; an unofficial English-language translation of the Act number 2009-258 dated 5 March 2009, provided by the University of Luxembourg, available at: wwwfr.uni.lu/content/download/31271/371434/.../France_translation_1.pdf. 66 Law of 29 July 1881 on Freedom of the Press, available at: http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006070722&dateTexte=vig. 67 A number of these cases have sparked challenges from free press advocates, see for instance: "Tahiti editor found guilty of defaming prosecutor in story about fellow journalist's disappearance," Reporters Without Borders, June 24, 2009, http://en.rsf.org/france-tahiti-editor-found-guilty-of-24-06-2009,33585.html. 68 For instance, journalists are bound by the "Gayssot Act" of 1990, which bans Holocaust denial. See Law No. 90-615 of July 13, 1990, consolidated version February 24, 2004, available in French at: http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000532990&dateTexte=. 69 Law No. 2004-575, June 21, 2004, Journal Officiel de la République Française [ J.O.] [Official Gazette of France], available at: http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000801164&dateTexte=. Article 2 relieves ISPs of civil and criminal responsibility if they had "no knowledge of illegal activity or material" or if they "acted promptly to remove or block access to it as soon as they discovered it. Providers are also exempt from civil responsibility if they "have no knowledge of how the illegal activity or material arose."