In France, unlike in most jurisdictions, public service broadcasting is undertaken by a number of different public companies. These are established and regulated by the 1986 Law relating to freedom of communication 63 (1986 Law). Different companies are responsible for programming, broadcasting, production of programmes and maintaining archives. The main regulatory body, the Conseil Superior de 1'Audiovisuel (CSA) is an independent statutory body, established under a 1989 Law." Laws governing broadcasting are subject to Article 11 of the Declaration of the Rights of Man of 1789,65 which guarantees freedom of dissemination of thought and opinion. The Conseil constitutionnel (Constitutional Court) has applied Article 11 to broadcasting regulation on a number of occasions, modifying or striking out inconsistent provisions."
There have been a number of important changes to broadcasting in France recently. Between 1945 and 1982 the State had a complete monopoly over the broadcasting sector. 67 Until 1964 the government exercised direct control over broadcasting and it was only in 1982 that value of regulatory independence was formally and practically recognised with the establishment of an independent High Authority. Broadcast regulation became a bit of a political football as the Chirac government replaced the High Authority with another body in 1986, substantially amending its mandate, and the Rocard government in turn replaced this authority with the CSA in 1989. Both the 1986 and 1989 laws were challenged before the Constitutional Court, which recognised the constitutional principle of pluralism of sources of information and held that specific provisions of these laws needed to be assessed against this principle. In both cases, a number of changes to the laws were required.68
Until 1974, public broadcasting in France was undertaken by a single government office. In that year, the institution was divided into seven separate "national programming companies", each responsible for a different activity. There are now six national programming companies, five established by the 1986 Law and a further one by a law of 1994,69 three of which are television companies and three radio companies as follows:
- France 2, with a mandate to undertake television programming throughout the whole metropolitan territory;
- France 3, with a mandate to undertake television programming with a national or regional character throughout the whole of the metropolitan territory;
- La cinquieme, with a particular mandate to undertake programming which promotes culture and learning;
- Radio-France, with a general mandate to undertake radio programming;
- Radio-France-Outre-Mer, with a mandate to develop television and radio programmes to be broadcast in overseas departments and territories; and
- Radio-France-Internationale, with a mandate to undertake international radio programming.
In addition, a publicly funded satellite channel, La Sept-ARTE, has a cultural and European programming remit.70
The 1986 Law also establishes a number of other companies with functions relevant to broadcasting. Article 51 establishes Teledifusion de France (TDF), a joint venture company with the majority of the capital belonging to public persons, is responsible for actual transmission of programmes. Its primary task is to broadcast public sector channels but it can also provide services to commercial companies. Maintenance of, and access to, archives is, pursuant to Article 49, the responsibility of the Institut national de 1' audiovisuel (INA), also a public company. Programme production is undertaken by another joint venture, the Societe francaise de production et de creation audiovisuelles (SFPCA), whose work is intended primarily for public channels."
Il. Public Service Mandate
The notion of even commercial broadcasting as a public service rather than simply a commercial exercise is still very strong in France. The main elements of the public service mandate are contained in Article 1 of the 1986 Law, entitled Article premier. This Article provides, among other things, for the CSA to guarantee the independence and impartiality of public service broadcasting organisations and to ensure that all broadcasters promote quality and diversity of programming, national audio-visual production and the French language and culture.
Many of the public service obligations established by the 1986 Law are imposed on both private
and state-funded broadcasters. For example, regulations approved in consultation with the Conseil
d' Etat (the highest administrative court) and with advice from the CSA may deal with advertising, broadcasting of programmes of French and European origin during peak hours and contributing to the development of audio-visual programme production." Article 15 makes the CSA responsible for ensuring that programmes broadcast by either public or private companies do not harm children or adolescents. Article 14 strictly forbids political advertising. Additional obligations are imposed on private broadcasters through special provisions in the 1986 Law, various decrees pursuant to that law and licensing documents. Television francaise 1 (TF1), a public channel, which was privatised in 1986 and remains the leading channel, is subject to particularly stringent public service obligations."
A number of other public service obligations relate only to national programming companies. These include respect for pluralism, special duties relating to broadcasting during. election campaigns, promotion of orchestras and choirs, a general educational, social and cultural mission, the conservation and exploitation of national audio-visual archives, a duty to broadcast parliamentary debates and messages by political parties, unions and professional bodies, and a duty to carry religious programmes on Sunday.74 Under Article 20, national programming companies are generally required to contribute to the development of national audio-visual activities.70
III. Governing Structure
The five national programming companies established pursuant to Article 44 of the 1986 Law, noted above, all have the same status. They are subject to the relevant body of commercial law as societes anonymes - except inasmuch as those laws conflict with the 1986 Law, for example concerning structure and capital requirements - but the State is the only shareholder. A cahier des charges, or charter, defines the programme obligations of these companies, particularly as this relates to their educational, cultural and social missions. Cahiers des charges are fixed by decree, adopted by the Prime Minister or President, upon advice by the CSA, and have the status of secondary legislation or regulations. Both the cahiers des charges and the CSA advice must be published in the Journal officiel de la Republic francaise, the equivalent of an Official Gazette."
The various cahiers des charges are broadly similar in nature, taking into account the different mandates of the various national programming companies, and represent for the most part an elaboration of the obligations set out in the 1986 Law. For example, the cahiers des charges approved by decree on 16 September 1994 for France 2 and France 3, require those channels to ensure the provision, to all sectors of the public, of information, cultural and entertainment programmes, according to their respective mandates. These cahiers des charges also elaborate a number of general programme obligations, requiring France 2 and 3, for example, to protect children and teenagers, promote honesty, independence and pluralism, particularly for news and political programmes, respect the principle of equality, human dignity and the recommendations of the CSA, and contribute to the promotion of French language and culture. The cahiers des charges also specify in some detail a number of obligations provided for in the 1986 Law, for example regarding government messages, electoral campaigns, Parliamentary debates, opinions by trade unions, religious programmes and special programmes of an educational or social nature.
The 1986 Law also provides for the establishment of Boards of Directors for the Article 44 programming companies. Each has 12 members with a 3-year mandate as follows, one person representing each chamber of Parliament, four persons representing the State, four qualified persons nominated by the CSA and two persons representing the workforce. The Presidents are nominated by the CSA - France 2 and France 3 share the same President - and may also be removed by the CSA.76 This structure is designed to ensure that the national programming companies are broadly representative of society as a whole and to prevent undue influence by any particular political constituency.
The other public service broadcasting companies, TDF, INA and SFPCA and the two national programming companies not provided for in Article 44, are all subject to general company law although either all or a majority of the share capital is held by the State. Some, like the INA and TDF, are governed by cahiers des charges, while others, like the SFPCA, are set up as ordinary private companies. The INA also has a Board of Directors, appointed in the same way as the Article 44 programming companies.77
B. Regulatory Mechanisms
Three bodies exercise some regulatory authority over public service broadcasting organisations in France, parliament, the government and the CSA. Parliament has overall authority for the legal framework for broadcasting but otherwise limited direct control. It also exercises considerable financial power (see below) and may determine the manner of broadcast of parliamentary debates.
The main source of government regulatory authority over broadcasters is its power to issue various decrees, such as those establishing the cahiers des charges, noted above. A number of the public service obligations noted above are established by government decree, including regulations regarding advertising and the broadcast of French programmes during peak hours. Under Article 54 of the 1986 Law, the government may also require programme companies to broadcast any declaration or communication it deems necessary.
The CSA is the main regulatory body for both public and private broadcasters. As noted above, the structure and authority of this regulatory body has been the subject of some attention in recent years and the present body was established by amendments to the 1986 law introduced in 1989. Its independence is guaranteed by Article premier and an attempt has been made to provide structural guarantees for that independence. It is composed of nine members, appointed by the President of the Republic but nominated in equal proportion by the three Presidents of the Republic, National Assembly and Senate respectively. The term of office is six years and may be neither renewed nor abrogated. The President of the CSA is designated by the President of the Republic.78 Pursuant to Articles 5 and 8, members of the CSA are subject to strict conflict of interest and professional secrecy rules which prevent them from engaging in activities deemed incompatible with their mandate (for example, holding elected office) or expressing their opinion on matters which have been or are being considered by the CSA. The CSA is funded entirely out of the State budget.79
The CSA has a range of powers regarding public service obligations, the content of the cahiers des charges of national programming companies and the appointment of Presidents of the Boards, noted above. Apart from appointing the Presidents of the Boards and nominating members to these bodies, the CSA has no power to interfere with the management of the national programming companies. The CSA has direct power to establish rules in three areas: broadcasting during election periods, the right of reply, and broadcasting of messages by political parties, national unions and professional bodies.80 It also has the right to be consulted on a number of issues noted above under public service role such as the rules regarding advertisements. An attempt in 1989 to give the CSA significant powers over advertising and sponsorship was ruled unconstitutional.81
Article 18 of the 1986 Law requires the CSA to address an annual report to the President of the Republic, the Government and the Parliament. The report must contain information concerning its activities, the way the law has been applied and the extent to which public service broadcasting organisations have respected their obligations. The report may also recommend modifications of a legal or regulatory nature and formulate observations on the way the license fee and advertising revenue is shared between the various public service broadcasting organisations.
The CSA has certain powers to ensure that national programming companies respect the law. Under Article 20 of the 1986 Law, its President may bring a case in the name of the State for breach of obligations, which it has been entrusted with ensuring. In case of a grave breach of the obligations of a public service broadcasting organisation, the CSA may make public observations thereon, addressed to the Board of Directors. It may also, in case of a grave breach of obligations in the cahier des charges, direct the relevant President to take such measures, as it deems necessary within a fixed period of time.82
Amendments to the 1986 Law introduced in 1994 considerably enhanced the CSA's enforcement powers over national programming companies." It may now order them to conform to their legal obligations and, where such orders or the law have not been complied with, and a warning has been issued, suspend a portion of the programme for up to one month or impose a fine. It may also order them to broadcast a message to the effect that they have breached their obligations. Refusal to do so may lead to a fine. The company can appeal such CSA decisions to the Conseil d'Etat within two months. 84
The primary source of funding for public service broadcasting organisations in France is the annual licence fee paid by TV owners, currently about $150 per year, accounting for approximately 70% of total revenues. The fee is expected to total almost 11 billion francs in 1998, an increase of 7% over the previous year. The vast majority of the remaining revenue comes from a combination of advertising and sponsorship of programmes, and national programming companies may also sell audio-visual works to which they have the rights.
Parliament sets the rate of the license fee each year and also approves the distribution of this fee among the various national programming companies and INA." This distribution should take into account the proposed budget and resources of the company, the effort made to promote production and the public service obligations being undertaken. The proportion of the total budget provided out of the license fee various between companies, expected to range in 1998 from a low of 48% for France 2 to a high of 99% for Radio-France-Internationale and La Sept-ARTE (see table). It is perhaps significant that the two most popular public channels derive a large proportion of their revenue from advertising.
Proportion of Budget from Public Source
Advertising revenues are strictly controlled for national programming companies. An overall limit to the amount that may be raised from advertising has been set by Parliament since 1987. A number of provisions in the 1986 Law restrict the content of advertisements or subject it to government control. Article 73 provides that cinematographic works may not be interrupted by advertisements. Article 48 requires the cahiers des charges to specify how advertisements may be broadcast and the maximum amount of advertising that is permitted. Examples of the latter are an average of six minutes an hour and an absolute limit of twelve minutes an hour for France 2 and five and ten minutes, respectively, for France 3." The cahiers des charges often require advertisements to be in French. These restrictions are justified as safeguarding public order and security, and promoting truth, decency, respect for the human person and the interests of consumers and minors. A Decree of 27 March 1992 also establishes a number of general principles concerning advertising, forbidding advertisement of certain products, requiring advertisements to be clearly recognisable and restricting interruptions of regular programmes."
National programming companies may have non-news programmes sponsored, but only where such programmes correspond to their educational, social and cultural missions." The 1992 Decree defines sponsorship as the financing of television programmes by a sponsor in order to promote its brand, its image, its name or its activities. Sponsorship must not contain specific promotional references nor encourage viewers to purchase the sponsor's products." Certain types of companies may not engage in sponsorship and sponsored programmes must be clearly identified."
63 Law No. 86-1067 of 30 September 1986, as subsequently modified. On the web, in French, via: http://www.legifrance.gouv.fr/html/ frame_codes_lois_regIt.htm.
64 Law No. 89-25 of 17 January 1989. The changes Introduced in 1989 were incorporated into the 1986 Law. References to the 1986 Law will be as amended.65
65 Affirmed in the Preamble to the Constitution of the Fifth Republic (1958).
66 "See below.
67 Private radio broadcasters did exist prior to the war.68
68 See Decision 86-217 of 18 September 1986 and Decision 88-248 of 17 January 1989,
69 Article 44 of the 1986 Law and Article 2 of Law No. 94-88 of 1 February 1994. The latter established La cinquieme.
70 Article 45 of the 1986 Law.
71 Article 52.
72 Article 27.
73 See Articles 58 to 69 of the 1986 Law. See also Barendt, op cit., p. 18.74
74 See Articles 13, 16, 44, 48, 49, 55 and 56 respectively. Only Radio-France is responsible for promoting orchestras and choirs and only France 2 is bound to broadcast religious programmes.
75 Articles 46 and 48.
76Article 47 of the 1986 Law.
77 See Articles 45, 49-52 and Article 2 of the 1994 Law.
78 Article 4.
79 Article 7.
80 Articles 1.6, 54 and 55.
81 Decision 88-248 of 17 January 1989. See Barendt, op c/t., p. 66.
82 Article 13.83
83 Law No. 94-88 of 1 February 1994. 84" Article 3 of the 1994 Law.
85 Article 53 of the 1986 Law. The other public broadcasting companies operate on a commercial basis, mainly by charging the national broadcasting companies for services.
86 Articles 60 and 62 of their respective cah/ers des charges.
87 See Articles 8, 9, 14, 15 and 16 of the 1992 Decree. Advertisements of tobacco, alcohol, books, cinema and the press are forbidden, except in overseas departments and territories. Interruptions are permitted only where this will not harm the integrity and value of the programme.
88 Article 48 of the 1986 Law.
89 Articles 17 and 18.90
90 Articles 18 and 19. Companies which vend alcoholic drinks, tobacco products or prescription drugs may not sponsor programmes.