SUSPENSION OF A FOREIGN TELEVISION CHANNEL
LexInter | December 1, 2008 | 0 Comments

SUSPENSION OF A FOREIGN TELEVISION CHANNEL

Considering the request, registered on December 1, 2004 at the litigation secretariat of the Council of State, presented by the president of the Superior council of audio-visual, tending that, on the basis of article 42-10 of the law n ° 86-1067 of September 30, 1986, the president of the litigation section of the Council of State, ruling in summary proceedings, ordered the company Eutelsat to stop broadcasting the television service Al Manar, within two months of from the notification of the decision to be taken;

he states that following a request for the same purposes filed on July 12, 2004, an order of the president of the litigation section of August 20, 2004 considered that some of Al Manar’s broadcasts infringe the principles mentioned in articles 1, 3-1 or 15 of the law of September 30, 1986 and that it was provided for by article 1 of this ordinance, that in the absence of presentation by Al Manar before October 1, 2004 of a complete file In order to request an agreement, Eutelsat must stop broadcasting Al Manar television services on its satellites by November 30, 2004 at the latest; that during the examination of the file of the agreement request completed on September 21, 2004, it was noted that certain programs entitled Flambeau sur la route de Jerusalem and Princes du paradis, the presentation of a double suicide bombing perpetrated in Beersheba on August 31, 2004 as well as the music video entitled Jerusalem is ours, broadcast on the 10 October, contained a content likely to infringe the principles mentioned in articles 1 and 15 of the law of 1986; that consequently, during the transmission of the draft convention to the Lebanese communication group, publisher of the Al Manar service, it was stressed that the company should renounce the broadcasting of such programs on the signal using a satellite under French law ; that by signing the agreement on November 19, 2004, the publisher has thus undertaken to broadcast in Europe, by satellite, a program which reconciles its editorial line with the principles which govern French and European audiovisual law; that this commitment has not been respected; that in particular, during the press review broadcast on November 23, 2004 at 4:48 p.m., an expert maintained that attempts at the voluntary transmission of serious diseases such as infection with the AIDS virus had been committed by the Zionists on the occasion of the export of Israeli products to Arab countries; such an assertion is contrary to article 15 of the law of 1986 which prohibits the broadcasting of any program containing an incitement to hatred or violence for reasons of religion or nationality; that it is also likely to cause tensions between communities living in France and thus constitute a risk for the safeguard of public order, in violation of article 1 of the law; whereas the channel broadcast on 23 November 2004 at 6 pm a program entitled Men Who Kept their Word glorifying violent actions against Israel in terms which are contrary to the provisions of Article 15 of the law; what is therefore the inability of the Lebanese communication group to bring its editorial line into line with our legal requirements as well as with its contractual commitments; that the reiteration of infringements of at least one of the principles mentioned in Articles 1, 3-1 or 15 of the law now makes it urgent that the broadcasting of this channel be ended; in violation of article 1 of the law; whereas the channel broadcast on 23 November 2004 at 6 pm a program entitled Men Who Kept their Word glorifying violent actions against Israel in terms which are contrary to the provisions of Article 15 of the law; what is therefore the inability of the Lebanese communication group to bring its editorial line into line with our legal requirements as well as with its contractual commitments; that the reiteration of infringements of at least one of the principles mentioned in Articles 1, 3-1 or 15 of the law now makes it urgent that the broadcasting of this channel be ended; in violation of article 1 of the law; whereas the channel broadcast on 23 November 2004 at 6 pm a program entitled Men Who Kept their Word glorifying violent actions against Israel in terms which are contrary to the provisions of Article 15 of the law; that thus proved the incapacity of the company Lebanese communication group to bring in conformity its editorial line with our legal requirements as with its contractual commitments; that the reiteration of infringements of at least one of the principles mentioned in Articles 1, 3-1 or 15 of the law now makes it urgent that the broadcasting of this channel be ended; whereas the channel broadcast a program on 23 November 2004 at 6 pm entitled Men Who Kept Their Word glorifying violent actions against Israel in terms which are contrary to the provisions of Article 15 of the law; what is therefore the inability of the Lebanese communication group to bring its editorial line into line with our legal requirements as well as with its contractual commitments; that the reiteration of infringements of at least one of the principles mentioned in Articles 1, 3-1 or 15 of the law now makes it urgent that the broadcasting of this channel be ended; whereas the channel broadcast on 23 November 2004 at 6 pm a program entitled Men Who Kept their Word glorifying violent actions against Israel in terms which are contrary to the provisions of Article 15 of the law; what is therefore the inability of the Lebanese communication group to bring its editorial line into line with our legal requirements as well as with its contractual commitments; that the reiteration of infringements of at least one of the principles mentioned in Articles 1, 3-1 or 15 of the law now makes it urgent that the broadcasting of this channel be terminated; inability of the Lebanese communication group to bring its editorial line into line with our legal requirements as well as with its contractual commitments; that the reiteration of infringements of at least one of the principles mentioned in Articles 1, 3-1 or 15 of the law now makes it urgent that the broadcasting of this channel be ended; inability of the Lebanese communication group to bring its editorial line into line with our legal requirements as well as with its contractual commitments; that the reiteration of infringements of at least one of the principles mentioned in Articles 1, 3-1 or 15 of the law now makes it urgent that the broadcasting of this channel be terminated;

Seen, recorded on December 3, 2004 the additional memory presented by the president of the Superior council of audio-visual which concludes that the company Eutelsat, under penalty, to stop the diffusion of the television service Al Manar, in the as soon as possible from the notification of the decision to be taken; he argues that the two-month period initially provided for by reference to the order of the president of the litigation section of August 20, 2004 took into account the technical difficulties and the supposed duration of the negotiations to be conducted with Arabsat, which broadcasts the Al Manar channel. ; such a delay appears excessive in view of the seriousness of the facts justifying the request;

Seen, recorded on December 7, 2004, the brief presented for the company Eutelsat which asks the president of the litigation section of the Council of State, if he decides to order the cessation of the broadcasting of the television service Al Manar, to give him notice that he will stop broadcasting the signal within a period which, taking into account technical constraints, can be estimated on the date of filing of his brief to be 48 hours from the notification of the ‘ordinance which would prescribe the cessation of broadcasting; it notes in this regard, that stopping the transmission of the Al Manar signal can only be achieved by Arabsat on its earth station located in Tunisia and that it can itself only intervene on the repeater concerned for the transport from the Al Manar channel, which is also used by eight other television channels; it further emphasizes that being ready to comply with the decision of the Council of State, the imposition of a fine is unnecessary;

Seen, recorded on December 7, 2004, the brief presented for the Lebanese communication group, publisher of the Al Manar Sat television channel, in response to the communication given to it of the appeal; it explains that on November 19, 2004 it signed an agreement with the Superior council of audio-visual in application of article 33-1 of the law n ° 86-1067 of September 30, 1986; that with regard to an agreed channel, the regulatory body has the power to sanction breaches of both legal and contractual obligations of this channel in compliance with the procedure provided for by articles 42 and following of the law, but not that of using the procedure governed by the article 42-10 of the same law as long as the agreement which constitutes authorization to broadcast has not been terminated; that moreover, the procedure of article 42-10 is reserved for non-agreed channels as is clear from the debates preceding the adoption by Parliament of the modifications made to this article by article 82 of the law of 9 July 2004; that the rejection of the request to end of prohibition is necessary all the more that the exhibitor has already modified its programs and continues to do so to respect the agreement; that it is with a substantial modification of its editorial line that it proceeds; that to do this it needs a dialogue with the Superior council of audio-visual and a minimum of time; has not been terminated; that moreover, the procedure of article 42-10 is reserved for non-agreed channels as is clear from the debates preceding the adoption by Parliament of the modifications made to this article by article 82 of the law of 9 July 2004; that the rejection of the request to end of prohibition is necessary all the more that the exhibitor has already modified its programs and continues to do so to respect the agreement; that it is with a substantial modification of its editorial line that it proceeds; that to do this it needs a dialogue with the Superior council of audio-visual and a minimum of time; has not been terminated; that moreover, the procedure of article 42-10 is reserved for non-agreed channels as is clear from the debates preceding the adoption by Parliament of the modifications made to this article by article 82 of the law of 9 July 2004; that the rejection of the request to end of prohibition is necessary all the more that the exhibitor has already modified its programs and continues to do so to respect the agreement; that it is with a substantial modification of its editorial line that it proceeds; that to do this it needs a dialogue with the Superior council of audio-visual and a minimum of time; article 42-10 is reserved for non-contracted channels as appears from the debates preceding the adoption by Parliament of the modifications made to this article by article 82 of the law of July 9, 2004; that the rejection of the request to end of prohibition is necessary all the more that the exhibitor has already modified its programs and continues to do so to respect the agreement; that it is with a substantial modification of its editorial line that it proceeds; that to do this it needs a dialogue with the Superior council of audio-visual and a minimum of time; article 42-10 is reserved for non-contracted channels as appears from the debates preceding the adoption by Parliament of the modifications made to this article by article 82 of the law of July 9, 2004; that the rejection of the request to end of prohibition is necessary all the more that the exhibitor has already modified its programs and continues to do so to respect the agreement; that it is with a substantial modification of its editorial line that it proceeds; that to do this it needs a dialogue with the Superior council of audio-visual and a minimum of time; that the rejection of the request to end of prohibition is necessary all the more that the exhibitor has already modified its programs and continues to do so to respect the agreement; that it is with a substantial modification of its editorial line that it proceeds; that to do this it needs a dialogue with the Superior council of audio-visual and a minimum of time; that the rejection of the request to end of prohibition is necessary all the more that the exhibitor has already modified its programs and continues to do so to respect the agreement; that it is with a substantial modification of its editorial line that it proceeds; that to do this it needs a dialogue with the Superior council of audio-visual and a minimum of time;

Considering, registered on December 8, 2004, the statement in intervention by which the Prime Minister concludes that the president of the litigation section of the Council of State grants the conclusions of the request; he explains that since the modifications made by law n ° 2000-719 of August 1, 2000 to that of September 30, 1986, a television service is subject to French law, not only if it has its place of establishment in France as specified in Article 43-3 of the Law of 1986, but also in the event that, although being established outside another Member State of the European Community or party to the Agreement on the Economic Area European, it uses a frequency granted by France, a satellite capacity under France or an uplink to a satellite located in France as is clear from article 43-4 of the aforementioned law; that within the framework thus defined a service of television by satellite must, to conform to the provisions of article 33-1 of the law, conclude with the Superior council of audio-visual (CSA) a convention; that failing that, the manager of right or of this service is exposed to the penal sanctions envisaged by the articles 78 of the law; that the failure by an authorized service to fulfill its obligations may be the subject of both an administrative sanction according to the procedure fixed by articles 42 and following of the law and contractual penalties; that the president of the CSA can, on the basis of article 42-10 of the law, ask the president of the litigation section of the Council of State to order the person who is guilty of a breach of the obligations resulting from the provisions of the law of September 30, 1986 to comply, if necessary under penalty, to these obligations; that the law of July 9, 2004 reinforced this control system by providing that, on the basis of article 42-10, the president of the litigation section, may, at the request of the CSA, stop broadcasting by an operator satellite, a television service under the jurisdiction of France whose programs infringe at least one of the principles mentioned in Articles 1, 3-1 or 15; that the emergency procedure of article 42-10 aims to put an end to or prevent a disturbance of public order; that it applies to both approved and non-approved channels; whereas it can be implemented in parallel with an administrative sanction procedure; that the two actions undertaken by the CSA, one, by its president, with regard to the company Eutelsat, the other vis-à-vis Al Manar are independent; that subordinating one of the two actions to the other would only lead to delaying maneuvers;

Seen, recorded on December 9, 2004, the statement in intervention by which the Central Consistory union of Jewish communities of France concludes that the president of the litigation section of the Council of State grants the conclusions of the request; He underlines that he intends, by his intervention, to express his bitterness and his indignation at seeing authorized on the territory of the Republic the broadcasting of programs openly advocating racial hatred and even inviting, at least implicitly, the physical destruction of the Jews ; that all of Al Manar’s programming, including game shows or commercials, conveys hatred; that the non respect of the convention passed on November 19, 2004 with the CSA could not surprise; that in law, the existence of the agreement does not preclude the implementation of the procedure provided for in article 42-10 of the law of September 30, 1986; that the action initiated by the president of the CSA is admissible and fully justified; that the president of the litigation section of the Council of State takes from article 82 of the law of July 9, 2004 the legal means to put an end to what must be called a scandal; that indeed, Al Manar mocked the invitation which had been made to him by the ordinance of August 20, 2004 to respect the principles of our Republic; that the political world and the religious authorities have expressed their emotion; that the sensitivity of the Jewish community is hurt by the content of Al Manar’s programs; what’ Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not exclude the prohibition of images which may be experienced as desecration by believers; that there is a risk of exacerbating tensions, especially among young people;

Seen, recorded on December 9, 2004, the memory in reply by which the president of the Superior council of audio-visual concludes with the same ends as the request by the same means; He further argues that during the television news broadcast by Al Manar in French on December 2, 2004 at around 11:30 p.m., Israel was accused of carrying out a campaign to prevent the channel from revealing to viewers in Europe the crimes against humanity perpetrated by this State both in occupied Palestine and in the world; that because of both this last fact that of those which are at the origin of the present procedure, the CSA has on December 7, 2004, decided to initiate against the Lebanese company communication group a sanction procedure; that the latter does

Seen, recorded on December 9, 2004, the additional brief presented for the Lebanese communication group which tends to the same ends as its previous brief by the same means; she declared herself surprised that the CSA could in its notice of November 30, 2004 refer to the information broadcasts devoted to the attacks of Beersheba of August 31 while no complaint had been made to her on this count during the investigation its request for agreement; that if some of the images and certain comments made on the Al Manar channel may have been perceived in France as manifestations of anti-Semitism or incitement to hatred and violence, the programs as a whole cannot be reduced to these images and about; that aware of the fact that the militant anti-Zionism of Al Manar could be interpreted in France as anti-Semitism, the leaders of the channel undertook a modification of their programs; that it maintains that there is a problem of consistency as to the respective areas of intervention of the sanctioning procedure initiated against it on the basis of Articles 42 et seq. of the Law of 1986 and the implementation of Article 42 -10; whereas the latter can only be applied to audiovisual services not under contract; that it follows that the request can only be rejected; that it is only in the event that the convention would be terminated that the president of the litigation section could be usefully seized; that in any event, a broadcasting ban measure should, like any police measure,

Seen, recorded on December 10, 2004, the brief presented for the Lebanese communication group, by which the latter produced a copy of the letter of the same day sent by its president to the CSA following receipt of the letter of December 7 current relating to the initiation of a sanction procedure against him;

Having regard to the other documents in the file;

Considering the Constitution, in particular its Preamble and article 55;

Considering the law n ° 73-1227 of December 31, 1973 authorizing the ratification of the European convention for the protection of human rights and fundamental freedoms and of the additional protocols n ° s 1, 3, 4 and 5, together the decree n ° 74-360 of May 3, 1974, publishing the aforementioned convention and protocols, in particular article 10 of the convention;

Considering the law n ° 86-1067 of September 30, 1986 relating to the freedom of communication, modified in particular by the laws n ° s 89-25 of January 17, 1989, 94-88 of February 1, 1994, 2000-719 of August 1, 2000 and 2004-669 of July 9, 2004, together with the decisions of the Constitutional Council relating to the assessment of the conformity of these laws with the Constitution;

Considering decree n ° 2002-140 of February 4, 2002;

Considering the code of administrative justice, in particular its article L. 553-1;

Considering ordinance n ° 269.813 issued on August 20, 2004 by the president of the litigation section of the Council of State;

After having summoned to a public hearing, the president of the Superior council of audio-visual, the company Eutelsat, the company Lebanese communication group, the Prime Minister and the Central Consistory union of the Jewish communities of France;

Having regard to the minutes of the public hearing of Saturday 11 December 2004 at 10 a.m. during which were heard:

– the representatives of the president of the Superior council of audio-visual;

– Maître PIWNICA, lawyer at the Council of State and at the Court of Cassation, lawyer of the company Eutelsat, as well as the representatives of this one;

– Maître GARREAU, lawyer at the Council of State and at the Court of Cassation, lawyer for the Lebanese communication group and its representative;

– the representative of the Prime Minister;

– Maître CHOUCROY, lawyer at the Council of State and at the Court of Cassation, lawyer for the Central Consistory union of Jewish communities in France;

Considering that the French company Eutelsat, a satellite telecommunications network operator, has, by contract, made part of its broadcasting capacity available to another satellite network operator, the Arabsat organization which has its headquarters in Saudi Arabia ; that this organization use the capacity contractually made available to it by Eutelsat to broadcast, in particular to France, a set of television channels, including the Al Manar channel, the programs of which are edited by the Lebanese communication group, having its registered office at Lebanon; that the latter company has no contractual relationship with the company Eutelsat; that its obligations under French law have been the subject of

Considering that, by reporting on the content of certain programs of the Al Manar channel, the president of the Superior council of audio-visual asks the president of the section of the litigation of the Council of State, on the basis of article 42-10 of the law of September 30, 1986, to order under penalty the company Eutelsat to stop the broadcasting of Al Manar television services as soon as possible from the decision to be taken;

On the interventions presented in support of the application:

Considering that the law of January 17, 1989, while incorporating in an article 42-10 added to the law of September 30, 1986, the initial content of the sixth and seventh paragraphs of article 42 of the latter law, supplemented it by an additional paragraph under the terms of which any person who has an interest therein can intervene in the action introduced by the president of the Superior council of audio-visual;

Regarding the intervention of the Prime Minister:

Considering that as ruled by the Constitutional Council in its decision n ° 86-217 DC of September 18, 1986, the regulatory body for audiovisual communication is subject to a legality check which may in particular be implemented by the government, which is responsible to Parliament for the activity of all state administrations; that, in the exercise of the responsibilities which are his, the Prime Minister has capacity to intervene in the support of an action undertaken by the president of the Superior council of audio-visual on the basis of article 42-10 of the law aforementioned; that his intervention must consequently be admitted;

Regarding the intervention of the Central Consistory union of Jewish communities in France:

Considering that having regard to the content of certain programs broadcast by the Al Manar channel, the Consistory central union of Jewish communities in France is admissible to intervene in support of the request;

On the applicable legislative provisions:

Considering that by virtue of the second paragraph of article 1 of the law of September 30, 1986, the exercise of the freedom of communication to the public by electronic means may be limited to the extent required in particular by the safeguard of public order ; that article 3-1 of the same law confers on the Superior council of audio-visual, independent authority, the care to guarantee the exercise of the freedom of communication as regards radio and television by any process of electronic communication in the conditions defined by … law; that in addition to the missions defined in the second paragraph of the same article, it is his responsibility to ensure compliance with the requirements set out in article 15 of the law; that it is specified in the fifth paragraph of said article, that the Superior Council of

Considering that among the means at its disposal to ensure the exercise of the missions entrusted to it by the legislator, the Superior council of audio-visual can impose on a publisher or a distributor of sound broadcasting or television services which does not comply with the formal notices sent to it in application of article 42 of the law, depending on the seriousness of the breach, one of the sanctions listed in article 42-1 of the law; that, in accordance with general principles of law, no sanction may be imposed without respecting the general principle of the rights of the defense; that in addition, the imposition of a sanction exceeding by its gravity the suspension of a service or part of a program for one month at most,

Considering that article 42-10 of the law provides in its first paragraph that In case of breach of the obligations resulting from this law and for the execution of the missions of the Superior council of audio-visual, its president can take legal action that the person responsible for it be ordered to comply with these provisions, to put an end to the irregularity or to remove its effects; that by virtue of the second sentence added to this paragraph by article 82 of law n ° 2004-669 of July 9, 2004, the legal request of the president of the regulatory body may be aimed at putting an end to the broadcasting, by a satellite operator, of a television service under the jurisdiction of France, the programs of which infringe the at least one of the principles mentioned in Articles 1, 3-1 or 15; that under the second paragraph of article 42-10, the request is presented to the president of the litigation section of the Council of State who decides in summary proceedings and whose decision is immediately enforceable. He may take, even ex officio, any precautionary measure and impose a penalty for the execution of his order;

Considering that it follows from the provisions of article 42-10 of the law of September 30, 1986 that the exercise of the competence attributed by said provisions to the president of the litigation section of the Council of State is not, unlike to what the Lebanese communication group supports, limited in its scope to only radio or television communication services that do not hold an authorization required by law or have not signed an agreement required by it; that far from restricting the scope of article 42-10 in its wording resulting from the law of January 17, 1989, article 82 of the law of July 9, 2004 intended on the contrary to extend it to allow, according to a procedure of ‘

Considering that unlike the implementation of articles 42 to 42-7 of the law which tend to the pronouncement of an administrative sanction by the Superior council of audio-visual, the procedure instituted by article 42-10 authorizes the prescription, by a judicial authority acting at the request of the president of the regulatory body, urgently and if necessary under penalty, of precautionary measures, of any measure aimed at putting an end to the irregularity denounced if it is established or to remove its effects, or even from the police measure resulting from the addition made to article 42-10 by the law of July 9, 2004; that it follows from this that the Lebanese communication group is not justified in maintaining that the

On the application in the present case of the relevant legislative provisions:

Considering that the order made by the president of the litigation section on August 20, 2004 following a previous request introduced by the president of the Superior council of audio-visual noted that on this date, some of the emissions of the Al Manar channel infringed at least one of the principles mentioned in articles 1, 3-1 or 15 of the law of September 30, 1986, to which article 42-10 refers; that the same ordinance consequently noted that the company Eutelsat should in principle cease to diffuse the programs of Al Manar; that however, taking into account the intention expressed by the chain, on August 18, 2004, to seize the Superior council of audio-visual of a request for conclusion of a convention, the pronouncement of a penalty to the

Considering that following the deposit by the publisher of the channel of a complete agreement file on September 21, 2004, the Superior Audiovisual Council decided on the following November 16 to grant it for a period of one year ; that during the examination of the request, the attention of the persons in charge of the chain was drawn to the fact that several programs, namely Flambeau on the road to Jerusalem, programmed on Tuesday, the production Princes of the paradise diffused on October 8 and the music video entitled Jerusalem is ours, presented content likely to infringe the principles mentioned in articles 1 and 15 of the law of September 30, 1986;

Considering that despite these warnings which should have encouraged those responsible for the channel to ensure compliance with the obligations set by the agreement signed on November 19, 2004 on the basis of article 33-1 of the law of September 30, 1986, particularly serious breaches of the provisions of article 15 of the law of September 30, 1986, which prohibit the broadcasting of any program containing incitement to hatred or to violence for reasons of religion or nationality; that, taken as a whole, the programs are part of a militant perspective, which has anti-Semitic connotations; that even if, as the public hearing of December 11, 2004 demonstrated,

Considering that in view of all of these elements, it is appropriate to urge the company Eutelsat to take all measures to terminate within 48 hours from the notification of this order the broadcasting of Al Manar television services on its satellites; that even if the company Eutelsat has expressed in advance its intention to comply with such a requirement, in order to ensure the full effect of this ordinance, the injunction made to this company should be accompanied by a penalty for each day of delay; that the amount of the penalty payment must, in the circumstances of the case, and taking into account in particular the part of the turnover of Eutelsat corresponding to its links with Arabsat, be fixed at 5 000 euros per day of delay;

Considering it is true that the publisher of the Al Manar channel has, within the framework of the procedure instituted against it by the Superior council of audio-visual on the basis of article 42 of the law, expressed its intention to modify its programs to comply with French law; that this ordinance cannot prejudge the attitude that the regulatory body will adopt on this point; that consequently, having regard to the particular nature of the procedure provided for in article 42-10 of the law of September 30, 1986, this ordinance does not exhaust the competence of the president of the litigation section to which he may belong to ‘office or at the request either of the president of the Superior council of audio-visual, or of the company Eutelsat,

DECIDES:


ORDERS:

——————

Article 1: The interventions of the Prime Minister and of the Central Consistory union of the Jewish communities of France are admitted.

Article 2: The company Eutelsat is ordered to cease the broadcasting on its satellites of Al Manar television services at the latest at the expiration of the period of 48 hours from the notification which will be made to it by fax of this Ordinance.

Article 3: Any exceeding by the company Eutelsat of the time limit prescribed by article 2 will expose it to a fine of 5,000 euros per day of delay.

Article 4: The procedure initiated by the request n ° 274757 of the president of the Superior council of audio-visual can be prolonged under the conditions indicated in the last recital of the present ordinance.

Article 5: The present ordinance will be notified to the company Eutelsat, to the president of the Superior council of audio-visual, to the company Lebanese communication group, to the Prime Minister, to the Central Consistory union of the Jewish communities of France and to the Minister of culture and of communication.

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