French media and broadcasting reform: Your roadmap through dense legislative and statutory activity

Hogan Lovells

Hogan Lovells

For the last 18 months, the French Parliament and Government have been working towards adopting a global reform in relation to the media and broadcasting industry. To guide you through the new legislative / statutory instruments, this roadmap publication, which will be updated as new instruments are adopted, provides an overview of the current situation, with links to more detailed publications on the adopted acts.

Busy agenda in the media and broadcasting industry which has been experiencing the adoption of various legislative / regulatory instruments over the past 18 months.

The French Government’s legislative fever began as Covid outbreak struck. It gave up the global reform it had launched on 9 December 2019 - then qualified as a major reform with respect to the media and broadcasting sector in lieu of multiple legislative and regulatory initiatives.

In response to the media and broadcasting industry’s dramatic evolution over the past 30 years, the global reform launched on 9 December 2019 aimed at modernising the current legal framework, largely inherited from the Law n°86-1067 of 30 September 1986, to adapt it to new undertakings whilst reinforcing the incentive granted to French cultural creation.

The Government Bill presented in 2019 provided in particular for:

  • the implementation of the unimplemented articles of the DSM Directive 2019/790 (by direct implementation or through an authorisation to implement by statutory instrument) which deal with new obligations and liability for content-sharing platforms and of the Directive 2019/789,
  • the implementation of Directive AVMS (audio-visual media services) to regulate the Video on Demand (VOD) platform environment,
  • the merger of the existing authorities (CSA and HADOPI) into one single super-powered regulatory body named ARCOM,
  • the creation a state-owned company intended to head both radio and TV state-owned broadcasting channels,
  • the adoption of less stringent conditions regarding TV advertising with more flexibility offered to use targeted advertising or split screens.

Instead, the general reform was replaced by multiple initiatives, both legislative and regulatory. In order to comply with the tight implementation deadlines, the Government was granted authorisation by Parliament to do so by statutory instruments under Law no. 2020-1508 of 3 December 2020.

In total, 8 legislative or regulatory instruments have been adopted, which cover and develop on the themes developed in the global reform draft. These instruments and their practical applications are summarized as follows:

Amended copyright framework adapted to new media

Articles 17 to 23 of Directive 2019/790 (Digital Single Market Directive) were implemented by a Statutory Instrument (Ordinance) no. 2021-580 adopted on 12 May 2021.  A major achievement of the Ordinance is the new safe harbour liability for online content-sharing platforms (see our earlier analysis here). New transparency obligations and sanctions related to exploitation of copyright granted to third parties were also added to French legal framework. For more details, please see our related publication here.

Directive 2019/789 on SatCab was transposed on 23 June 2021 by another Statutory Instrument no. 2021-798. This Ordinance establishes rules on the enforcement of copyright and neighbouring rights in the context of cross-border broadcasting and radio programs. See our analysis here.

Law no. 2021-1382 of 25 October 2021 for regulation and protection of access to cultural works in a digital era finalizes the copyright revision by adding a Government notice scheme prior to any assignment of French film catalogue.

Broadcasting rules

The AVMS Directive is implemented by Ordinance no. 2020-1642 of 21 December 2020 and then by the Decree no. 2021-793 of 22 June 2021. The major provision here is the application of a “cinematographic development levy” on foreign on-demand AVMS targeting France, paired with an increased supervisory role of the High Council for Audiovisual (CSA). We outlined these provisions shortly before its adoption here.

In addition, Decree no. 2020-984 of 5 August 2020 modifies the broadcasting scale of films by TV channels, allowing broadcasting at new times to adapt to on-demand  AVMS.

Relaxing targeted TV advertising

By Decree no. 2020-983 of 5 August 2020, the Government modified the TV advertising rules allowing targeted advertisement on TV. Targeted advertising is nonetheless limited in terms of advertising content and total hourly duration. Further, any targeted ads shall be clearly identified as such.

Sector regulation

Law no. 2021-1382, mentioned in the first sub-para above, also provides for amendments to sector regulation which lies within two significant aspects:

  • on the one hand, it amends regulation by creating a brand-new regulating body with extended powers, – ARCOM -  originating from the merger between pre-existing authorities (CSA and the HADOPI) into one single body;

  • on the other hand, it identifies specific copyright infringement practices and sets enforcement schemes (e.g. mirror websites or sport event parallel live streaming).

Further detailed analysis on this law will follow in this roadmap series.

What’s next ?

Several measures still need to be taken. Government initially laid out by Decree on 26 January 2021 that an industry agreement setting a new media chronology would have to be adopted by 31 March 2021. To date, this has still not been the case and this has begun to be flagged by some stakeholders.

Further, the implementation of the remaining provisions of Directive 2019/790 which mostly provide for new exceptions and limitations to French copyright has not yet been made.

Regulatory clarifications which had to be taken by Government in application of the implementation of the Article 17 to 23 are also still awaited.

Finally and following with the AVMS Decree, the new CabSat and Hertzian TV Decree, defining the contribution of “traditional” broadcasters to cinematographic development is due to be adopted in the coming months. Government is nonetheless already at work as can be seen from a public consultation which occurred this summer.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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