Translation with SYSTRAN Links

Opinion of December 17th, 2002 relating to the government bill for confidence and the security in the digital economy

Publication date: Tuesday, December 17, 2002

Seized for opinion, by letter of November 28th, 2002 of the minister for the Culture and the Communication, on the government bill for confidence and the security in the digital economy, the Superior council of audio-visual formulates the following observations, which relate primarily on the legal mode of the departments of communication online and to the “satellite systems”.

 The Council points out that the convergence of the services and the networks must encourage the legislator to tend towards technological neutrality and thus towards the equal treatment between services with the similar contents accessible on different supports.
 However, the technological principle of neutrality must be moderate according to various criteria justifying that various levels of obligation are envisaged and holding in particular with the scarcity of the resource (capacities limited of transport of services on the hertzian and cabled networks of diffusion), with the relative impact of the services according to the borrowed support or the intervening variable degree of the user for his access to the services and a possible personalization of their contents.
 The technological change would have justified a more radical legislation adaptation, which calls into question the current architecture of the law of September 30th, 1986 (founded on a regulation by support) and which fixes specific regimes for the services being connected at services of radio and television, whatever the borrowed support.
 The Council considers it regrettable that such is not the approach adopted in the government bill for confidence and the security in the digital economy, which is limited to partial installations and which leaves in the state of important disparities of legal modes between services of comparable nature.

Article 1st: definition of the public communication online
 The government bill introduced in article 2 of the law of 1986 a definition of the public communication online, which seems a subset of the audio-visual communication.
 The Council considers satisfactory this definition in its principle, insofar as it does not call into question fastening to the right of the audio-visual communication of services such as the Web sites. This fastening testifies to what, beyond the differences in use, which justify legal modes and distinct modes of regulation, the whole of the services placed at the disposal of the public recover the same challenges of contents, in particular in comparison with the formation of the ideas and the access to the knowledge and the culture, and must take care of the respect of the same principles (pluralism, protection of the minors, respect of the dignity of the person, respect of the private life, etc). This inclusion in the audio-visual communication remains nevertheless very theoretical insofar as article 2 of the government bill led to build a specific legal mode which online withdraws the departments of communication public from the general principles of the right of the audio-visual communication.
 This is why the Council estimates that the fixing of modes appropriate to each service type, from the point of view of technological neutrality and with the aim of preserve the equal treatment between services of comparable nature, should pass by a clear definition, appearing in the law, of the criteria allowing to qualify a television service or of sound broadcasting, whatever its support. For the public communication online, this definition should be able to as well apply to the resumption in integral and simultaneous transmission of services of radio and television diffused to other supports as to the diffusion of original services comparable for the public to such services, and this whatever the technical methods of the access to these services, download or immediate access in continuous flow (streaming).
 Such is not the approach adopted in the government bill, which consolidates a great disparity of modes between the services of radio and television and services assimilable, according to their mode of diffusion (hertzian way terrestrial; cable and satellite; Internet). It thus creates a risk of distortion of competition and skirting of the obligations relating to the contents by a migration towards the least constraining support and can in the medium term open up the way for a more radical deregulation of the traditional mediums.
 Taking into account the importance of the challenges in question and real risk of reconsideration of the basic principles of the right of audio-visual, the Superior council of the audio-visual judge thus essential the fixing of a specific definition and a minimal legal framework applicable to the whole of on-line services whose contents can be comparable for the public to that of services of radio and television.

Article 2: role of the CSA with regard to the services online
 The government bill specifies (article 43-6-1 of the law of 1986, introduced by article 2 of the government bill) which are applicable to the departments of communication public online the provisions of the chapter of the law of 1986 which is devoted to them, “as well as articles 17 and 41-4” which treat competition and concentration in the audio-visual sector.
 This last precision can be interpreted only like restricting, for the public communication online, competences whose Council currently has on the unit the departments of communication audio-visual.
 Indeed, since are aimed expressly, for the departments of communication public online, only articles 17 and 41-4, one from of a contrario deduced that would not be applicable any more for them:
 - nor the article 1st, which makes it possible in particular to the CSA to send recommendations to the editors and distributors of services of audio-visual communication and which fixes the principles and objectives which justify that it is undermined the freedom of communication;
 - nor article 15, on the protection of the youth, whose first subparagraph applies to the whole of the departments of communication audio-visual.
 The drafting selected appears source of ambiguity thus and would deserve to be clarified. The Council considers that these two articles 1st and 15, which have a very general vocation and aim at ensuring a high level of protection of objectives of general interest, should apply to the departments of communication public online which are comparable for the public to services of radio and television. It in particular estimates to have a particular legitimacy as regards child protection and of the adolescence and respect of the dignity of the person, who would justify that it can address on this subject of the recommendations to the editors of departments of communication online public. Such recommendations could in particular support an optimal use of the devices of filtering envisaged in article 43-7 of the law of September 30th, 1986.
 In front of the development prospects soon offered to the services of television on the Internet with high flow, the CSA raises the disadvantages of a total absence of regulation of the contents diffused on the Internet, in particular concerning the respect of the principles recalled to the article 1st of the law of September 30th, 1986 (respect of, freedom and property of others, the pluralist character human dignity of the expression of the currents of thought and opinion; need for developing a national industry of audiovisual production).
 This situation, of which it was already raised that it caused inequality of treatment and that it could support strategies of skirting, flashes back besides on the regulation of the services of radio and television. Thus, the accessibility of the minors to programs prejudicial to the minors on Internet is sometimes called upon to on television dispute the restrictions on the diffusion of such programs, where they are however framed by time interdicts and a recourse to the double locking in the course of reinforcement.
 The CSA notes, in this respect, that the directive “trades electronic” promotes certainly the self-regulation of the services of the company of information, but according to methods which do not exclude to grant to the public authorities of the Member States a role of impulse and framing in this field.
 It thus seems completely possible to him, at the time of the transposition of this directive, to entrust to the regulator, with regard to the contents prejudicial or illicit, a mission being able to go from the framing of self-regulation to the direct regulation, in particular in the form of recommendations. That would thus make it possible to the CSA to play a part of impulse and to encourage the production of codes of good control in the fields for which the directive “trades electronic” and the recommendation of September 24th, 1998 (1) encourage the Member States to take this kind of initiative.
 The Council is nevertheless conscious of the limits and the difficulties of implementation of a national system of regulation with regard to a mode of communication which is unaware of the national borders.
 For articles 17 and 41-4, the Council estimates on the bottom that their public application to the departments of communication online is completely adapted to face the possible risks of restrictive practices of competition or anticompetitive practices. The implementation of strategies of concentration can indeed involve effects of distortion of competition in the access to the contents or the access to the customers for the services distributed on the digital networks. The respect of the principle of the pluralism, posed by the article 1st of the law of 1986, also passes by an effective and fair competition between the network operators and the editors of on-line services.

Article 10: online ad
 The CSA approves the re-establishment of the obligation to present like such publicity, while being conscious that its implementation concretes on the Web sites is likely to suffer from difficulties and that its range is limited by the absence of penal sanctions (whereas such sanctions exist for the newspaper industry).

 The government bill, in its articles 35 to 37, fixes the mode applicable to the satellite systems and subjects them in particular to authorization of the minister in charge for telecommunications.
 These infrastructures of telecommunications will be able, a priori, being used indifferently for telecommunication services and for departments of communication audio-visual and they will be able to relate to affected satellite frequencies as well with telecommunications as with broadcasting. The CSA, who is guaranteeing exercise of the freedom of communication, estimates that it must be associated with the procedure with authorization since satellite frequencies related with sound broadcasting and the satellite television will be concerned. It notes, in the only explanatory memorandum, a description of the procedure of authorization which comprises a consultation of the authorities affectataires by the National agency of the frequencies. It estimates necessary that the principle of an assent of the CSA is posed in the device even projet de loi, whenever this procedure of authorization has an impact on the methods of exercise of the freedom of communication.

(1) Recommendation of the council of September 24th, 1998 concerning the development of the competitiveness of the European industry of the audio-visual services and information by the promotion of national frameworks aiming at ensuring a comparable and effective level of protection of the minors and human dignity.