RSF appeal elicits historic decision by France’s Council of State on TV news channel’s regulation
Reporters Without Borders (RSF) hails the French Council of State’s decision to overrule the broadcasting regulator’s refusal to issue a warning to a TV news channel at RSF’s request. This is a turning point in the enforcement of news media pluralism and independence in France, says RSF, praising France’s highest administrative court for forcing the regulator to do what it is supposed to do.
RSF asked ARCOM, France’s broadcasting and digital communication regulator, in November 2021 to warn CNews – a TV news channel owned by a media company controlled by French billionaire businessman Vincent Bolloré – that it was not complying with the truthfulness, independence and pluralism requirements that French law imposes on the country’s news broadcast media.
After receiving a response from ARCOM on 5 April 2022, in which the regulator refused to respond favourably to this request, RSF filed an appeal with the Council of State eight days later denouncing its failure to act.
The ruling issued by the Council of State on 13 February, ordering ARCOM to reconsider its refusal, is a major victory for RSF. The regulator’s refusal to act was due to the inadequacy of the control that it exercises, and the unjustified limitations it had imposed on the extent of its own authority regarding broadcast news media pluralism and independence.
The Council of State gave two reasons for overruling ARCOM. With regard to the independence of news content, the Council criticised the regulator for confining its intervention to blatant breaches during identified on-the-air sequences, without assessing the overall conduct of CNews or its management, including off the air. With regard to content pluralism, the Council of State criticised ARCOM for limiting its control to examining compliance with the rules governing the time politicians speak on the air, without verifying whether CNews complies with the requirement to reflect a diversity of currents of thought and opinion. CNews must reexamine its policy on these points, the Council said.
This is the second time in 14 months that RSF has appealed successfully to the Council of State against an ARCOM decision. In December 2022, RSF convinced the Council of State that ARCOM had the authority to order a French satellite operator to stop transmitting Russian propaganda TV channel signals to Russia, Belarus and Ukraine’s occupied territories.
“Our goal in fighting for news media pluralism and independence is simply to defend democracy. Society’s fragmentation as a result of media polarisation, media capture by their owners and the decline of journalism are terrible dangers for our country and for each of us. It is no coincidence that the French are calling loudly for news media pluralism and independence to be strengthened. This historic Council of State decision will make a big difference by forcing the broadcasting regulator to finally rise to the challenge. We have been calling on the regulator to exercise its authority for nearly ten years. It is not any individual editorial line that is at stake, but our ability to access a diversity of facts and opinions. We do not want to go the same way as the United States, where a democracy has been brought to the brink of civil war because democratic protection for broadcasting was dismantled, with the resulting media polarisation. Urgent action is needed in France because the public debate is more than ever at risk of being fragmented, particularly with the development of major conflicts of interest.
“CNews has been becoming more of a French-style Fox News by the minute, with more than 8 million viewers a day and drawing news broadcasting increasingly into social commentary. The regulator’s laissez-faire attitude and the excesses that have prevailed at this TV channel until now have finally received an unprecedented red signal.
“This is a very big victory for freedom of information and media pluralism. For the first time, just as we asked, the Council of State has insisted that ARCOM should monitor respect for pluralism on all CNews programmes. It has gone even further by requiring that the regulator ensures that the TV channel’s effective independence is protected against any shareholder attempts to influence its editorial line. ARCOM’s passivity has been punished. The regulator now has six months to complete these checks.
“I am delighted that the semiological analysis I carried out for RSF has resulted in a court decision. The law states that the regulator ‘ensures respect for the pluralist expression of currents of thought and opinion.’ Media studies have long proposed other ways of measuring pluralism than the restrictive one used until now by ARCOM, which is limited to political affiliation alone, and is basically out of tune with the way the public sees things.
Broadcast regulation upset
Whether the broadcast media respect their obligations is the subject of much debate in France, and the media – including public service media – are often accused of politically biased news reporting. RSF's appeal did not, however, concern CNews’ editorial line, which falls within the scope of its editorial freedom, and was not based on any political consideration. RSF‘s appeal solely concerned the importance of the obligations that the law places on all broadcast media, the appropriateness of the means given to the regulator to enforce these obligations, and the effectiveness of its control.
The case of CNews is emblematic in that it highlights the ineffectiveness of ARCOM's control, which raises the question of the appropriateness of the entire media regulatory framework in France. ARCOM has in fact called CNews to order on many occasions in recent years for occasional breaches of information independence or pluralism requirements without succeeding in influencing the channel's conduct.
ARCOM has always limited itself to ruling on specific broadcast sequences, specific breaches, without ever questioning the structural causes that could be the cause of these breaches. Criticism of the limited, and therefore ineffective nature of this control was at the heart of the appeals filed by RSF. In essence, both RSF and the Council of State have made the same criticism of ARCOM, that it has a minimalist interpretation of its powers that results in an evasion of its responsibilities.
Regarding pluralism, RSF pointed out the inadequacies of the current system and, in its written submissions, indicated that other forms of measuring pluralism exist, leaving the task of establishing a new method to the regulator. Pluralism as defined by ARCOM until now has obviously been limited to an issue of political party representation alone and not to a need for public understanding.
Accelerator for various initiatives
The Council of State’s decision is likely to have significant consequences, as a national conference on information is currently underway in France that is working in particular on broadcast media regulation, and the issue has been much discussed in recent years, including by a Senate commission of inquiry into media ownership concentration, by a joint investigation by the General Inspectorate of Finance and the General Inspectorate of Cultural Affairs into broadcast media concentrations and pluralism, and a National Assembly inquiry into control over digital terrestrial television (DTT) channels.
The Council of State’s ruling firstly requires ARCOM to reach a new decision on the specific case of CNews within six months, and therefore to review the principles and methods of the control it exercises over pluralism and independence at all of France’s approved TV channels.
With 15 DTT channel agreements – six of them concerning Canal+ group TV channels – due to be renegotiated in 2024, ARCOM could now end up being much tougher in the negotiation and drafting of these agreements. In particular, it could impose stricter pluralism and independence requirements, as it is now required to give a real content to these obligations and ensure that compliance is verifiable and quantifiable.
