France’s broadcasting regulatory authority, the CSA, published in its April 14, 2014 annual report the details of a legislative proposal that would allow the CSA to claim jurisdiction over a broad swath of Internet content called “digital audiovisual services.” This new category of services would be subject to several of the most fundamental principles of French audiovisual law, such as protection of children and the prohibition of content inciting racial hatred. In addition to being subject to these obligatory principles, digital audiovisual services would have the option of agreeing to specific measures to promote other objectives of France’s audiovisual law, including measures to promote diversity of opinion, the rights of women or French and European content production. In exchange for these voluntary measures, the digital audiovisual service would benefit from the right to be featured prominently on digital distribution platforms. The voluntary measures would give the service provider a form of “must-carry” right with regard to digital distribution platforms, as well as improved access to films and subsidies.
The CSA’s proposals have not yet been adopted into the French law. They will likely be included in an audiovisual reform bill presented by the government to Parliament later this year. The CSA’s initiative is noteworthy because it attempts to extend the principles of French audiovisual law to certain Internet services that are normally not regulated under broadcasting regulations. Currently, the CSA’s regulatory jurisdiction is limited to traditional linear television and radio services, as well as to so-called “on-demand audiovisual media services.” Video exchange platforms, such as Dailymotion and YouTube generally fall outside the CSA’s jurisdiction, because they are not considered “on-demand audiovisual media services.” Moreover, the CSA only has jurisdiction over service providers established in France. Under the country of origin rule set forth in the Audiovisual Media Services Directive, service providers established in other member states of the European Union are subject to the audiovisual laws of their country of establishment, even if the service targets French users. French law may not discriminate against services established in other member states. The CSA and the French government would like to change the country of origin rule in the directive, and move toward a “country of destination” rule. A country of destination rule would permit the CSA to exercise its jurisdiction with regard to services established elsewhere, but targeting French users.
Pending revision of the directive, the CSA’s proposal is a first step toward extending broadcasting regulation to Internet services that fall outside the classical definition of on-demand audiovisual media services. The CSA’s proposal does not appear to be limited to digital audiovisual services established in France. Thus, the CSA is also attempting to extend its regulatory authority to non-French based services. The CSA’s proposal takes a light-handed regulatory approach, applying only the most fundamental principles of French audiovisual law — principles that few (in France at least) could argue with, such as the protection of children and the prohibition of content inciting racial hatred. The additional (and more controversial) regulatory obligations, such as promoting French content, would only kick-in to the extent a service provider agrees to assume additional obligations.
The CSA’s proposal would provide market-access benefits to services that voluntarily agree to comply with certain French broadcasting rules. An open question is whether this constitutes hidden discrimination against service providers established in other member states. An argument can be made that those services are disadvantaged unless they agree “voluntarily” to apply French rules. If this amounts to a hidden form of discrimination, the CSA’s proposal would run afoul of the AVMS Directive.
The CSA’s position is influential in other European member states. In addition to chairing the French CSA, Olivier Schrameck also chairs the newly-created group of European audiovisual regulators, the ERGA. The CSA’s attempt to extend its regulatory reach into the Internet space will be watched closely by regulators throughout Europe.