Audiovisual regulation before the Council of State or the « sense of timing »
In a decision rendered on 28 September (no. 452212), the Council of State provided a new example of how legal issues of importance to audiovisual communication services and, consequently, to listeners-viewers-voters, can be decided in a discreet manner, through the magic of economy of means, the timing of the investigation and the classification of the decision.
This case concerns the legality - or the possible illegality - of a decision of March 3, 2021 by which the Conseil supérieur de l'audiovisuel (CSA), which has since become the Autorité de régulation de la communication audiovisuelle et numérique (ARCOM), asked publishers of audiovisual communication services to fully deduct the time of intervention in the audiovisual media of media personalities, namely Mrs. Marion Maréchal and Messrs. Nicolas Hulot, Laurent Joffrin, Arnaud Montebourg and Manuel Valls.
Pluralism and counting of speaking time for political figures
Freedom of communication is exercised in particular within the framework set by law no. 86-1067 of September 30, 1986, known as the "Léotard Law". This freedom may be limited only to the extent required by certain imperatives of general interest, including respect for the pluralist nature of the expression of currents of thought and opinion (art. 1).
The pluralism of currents of thought and opinion in audiovisual services covers external pluralism, i.e. the diversity of services and their operators, and internal pluralism, which concerns the content of the programs broadcast. It is the responsibility of the regulator, the CSA, formerly the ARCOM today, to ensure the respect of the pluralistic expression of currents of thought and opinion in the programs of radio and television services, in particular for programs of general political information. In order to allow this control, radio and television services must transmit to the regulator the data relating to the time spent by political figures on their airwaves (art. 13).
On the basis of these legislative provisions, the regulator issues general recommendations concerning the respect of political pluralism outside election periods and recommendations imposing, during election periods, the respect of a principle of equity or equality between candidates.
The legal framework applicable outside election periods was set by the CSA's Deliberation No. 2017-62 of November 22, 2017 on the principle of political pluralism in radio and television services. It results from this deliberation that the political personalities whose speaking time must be deducted belong, on the one hand, to the Presidency of the Republic, its collaborators and members of the Government and, on the other hand, to political parties or groupings.
In order to objectively identify these political personalities, the CSA traditionally considered that they had to belong to a political grouping or exercise a mandate. The objectivity of the criteria was unquestionable.
Change of doctrine regarding the definition of political figures
Without amending its aforementioned deliberation of November 22, 2017, the CSA changed its doctrine in 2021, shortly before the regional elections and a little over a year before the presidential and legislative elections.
By a deliberation of March 3, 2022, the regulator asked publishers of audiovisual communication services to count the time of the following personalities: Ms. Marion Maréchal and Messrs. Nicolas Hulot, Laurent Joffrin, Arnaud Montebourg and Manuel Valls.
Although it may seem insignificant, this decision represents an evolution of the CSA's doctrine insofar as most of these personalities were not affiliated to any political grouping and did not hold an elective mandate in France at that time. As this change has a major influence on the way editors conceive their programs and the calendar of invitations of personalities, some of them decided to appeal to the Concil of State for excess of power against this decision.
An act liable to give rise to a complaint
The first question facing the High Court was to determine whether the recourse for excess of power is indeed open against this type of deliberation. In its defense, the CSA raised an objection based on the inadmissibility of the request, insofar as it was directed against an act that did not give rise to a complaint, and consequently could not be appealed.
The Concil of State quickly dismissed this argument, noting that the contested decision could be appealed on the grounds of misuse of power by an applicant with an interest in acting, unlike the e-mail by which the regulator notified the operators concerned of its decision.
This interpretation is not surprising in view of the previous case law of the Concil of State on the subject. Indeed, one can recall that the High Court has :
Admitted the admissibility of an appeal seeking the annulment of a decision by which the CSA rejected a request for the modification of its deliberation of February 8, 2000 relating to the modalities of evaluation of the respect of political pluralism in the media in order to take into account the interventions of the President of the Republic and his collaborators (CE, Ass., April 8, 2009, M. Hollande et a., n° 311136).
Noted the inadmissibility of an appeal seeking the annulment of CSA recommendations relating to the mention of social networks in television and radio programs (CE, December 30, 2015, Société Vortex, n° 390046).
In this second case, the judge specified that the CSA is free to formulate positions that do not constitute decisions that cause a complaint, but "that it would be different if they had the character of general and imperative provisions or individual prescriptions whose disregard the Council could subsequently censure". In a way, this reasoning already announced the decision of assembly Company Fairvesta International Gmbh of March 23, 2016 relating to appeals against acts of flexible law of regulatory authorities (No. 368082).
In the present case, the Concil of State admits the admissibility of the appeal lodged against the deliberation by which the CSA has, in fact, widened the definition of the scope of political personalities whose speaking time must be counted.
Legality of the CSA's decision
On the substance, this change of doctrine of the CSA represents a strong risk of increasing the constraints of counting and programming weighing on the publishers of audiovisual services. If the regulator decides to add to the list of political personalities non-elected personalities and non-members of a political grouping, it seems likely that the list of said personalities will grow exponentially to include any personality expressing a "political" opinion in the media. This could simultaneously deprive an operator of the possibility of defining its own editorial line.
Firstly, the applicants argued that this change in doctrine infringed their editorial freedom by forcing them to ensure strict equity in the speaking time of political opinions, even though the Léotard law only requires strict equity in the speaking time of political figures. The Concil of State does not respond to this criticism and merely explains that the obligation to count is a result of the law. The reasoning is a bit short and tautological. Even if one were to admit that the legislator cannot do wrong, the question here was to determine whether the regulator had correctly applied the law. The judge did not rule on this.
Secondly, the applicants argued that the contested deliberation disregarded the provisions of the deliberation of November 22, 2017, which defined the notion of political personality. The Concil of State dismissed this argument, considering that the legal basis for the contested deliberation lies directly in the Léotard law. Above all, it accepted that the CSA could consider that personalities should "be regarded as political personalities within the meaning and for the application of these provisions, even though they [were], on the date of the decision, neither elected nor candidates in any election and [were not or no longer] members of a political party or grouping".
In this case, the Concil of state considers that the CSA did not commit a manifest error of assessment in the choice of the above-mentioned personalities insofar as :
On the one hand, these personalities belonged or had recently belonged to political parties, groupings or movements and had recently exercised political functions or aspired to exercise such functions.
On the other hand, these personalities were actively participating, at the date of the contested decision, in the national political debate.
The mention of the "date of the contested decision" is essential because the judge of the excess of power rules on the date on which the decision targeted by the appeal was adopted by its author.
The change in the CSA's doctrine and the broadening of the notion of "political personality" within the meaning of this legislation is therefore validated by the judge of legality. Although questionable from a strictly legal point of view, this evolution was perhaps unavoidable in a context where political mandates and groupings no longer have the importance they may have had in the past. Nevertheless, this decision shows that the administrative judge reserves the right to censure for a manifest error of assessment a deliberation concerning the obligation of a personality whose political character would not be sufficiently affirmed. The regulator has been warned.
Finally, it is surprising that this decision, whose complexity does not seem to be a problem, was rendered nearly eighteen months after the appeal was filed and after major elections, even though it concerns an essential question for the treatment of political news by broadcasters. This seems to demonstrate that the courts, too, can have a certain "sense of timing".