France, Al Aqsa TV, hate speech and the EU

A Commission press release notes that the Commission has decided to end an infringement action it had started against France in respect of the infringement of the Audiovisual Media Services Directive (AVMSD) (formerly the Television without Frontiers Directive). Interestingly, this action had concerned not the transposition of the AVMSD, but the failure of the French state, via the independent media regulator (Conseil supérieur de l’audiovisuel (CSA)), to ensure effective implementation of certain provisions, notably the prohibition on hate speech, which has been in the directive since it was originally enacted.

The infringement action concerned Al Aqsa TV was broadcast via the Atlantic Bird 4 satellite, which is operated by Eutelsat, a French company, via an uplink located outside the EU. The content of the broadcast was capable of being received within the EU. According to rules set out in the directive, this meant that France was the member state with the responsibility for regulating the channel. In 2008, the CSA noted that Al-Aqsa TV was broadcasting programmes containing incitement, contrary to both the directive and French law. Under French law, the CSA is entitled to impose penalties on public and private radio stations and television channels, on distributors, and on satellite network operators. In addition, the CSA can also refer cases to the procureur de la République (public prosecutor), where the offence is punishable under the criminal law, which includes incitement to racial hatred. The CSA may also to request the Conseil d’État (France’s highest administrative court) to order termination of the channel’s transmission (see for various powers Articles 42, 42-1 and 42-10 of French Law No. 86-1067 of 30 September 1986 as amended by Law No. 2004-669 of 9 July 2004 – for a summary and link to the French legislation, see here). Although the CSA sought to resolve the issue, Al-Aqsa TV continued to broadcast the offending programmes, and the European Commission eventually decided that in not taking stronger action, France was in breach of its obligations. The Commission sent a letter of formal notice on 3 June 2010 to the French authorities asking them to ensure that the rules in AVMSD, banning programmes containing incitement to hatred, were respected.

As a result, on 8 June this year the CSA published a decision whereby Eutelsat was instructed Eutelsat to stop broadcasting the channel. It should be noted that, although not required by AVMSD, the French law which empowers the authorities to give such instructions, also empowers them to sanction Eutelsat S.A. by imposing a fine that can be as high as 3% of its annual revenues were it not to comply. This would certainly seem to be a mechanism to encourage compliance on the part of satellite operators. In this case, the decision involved Eutelsat in certain technical and contractual steps before it could turn off the Al-Aqsa TV stream, not least the fact that Eutelsat’s contract was not with Al-Aqsa directly, but with Noorsat, a company that leases satellite-broadcast capacity for channels targeting audiences in North Africa and the Middle East. This then ilustrates the practical difficulties that can arise in enforcement actions such as this. It was only on 24 June that Al-Aqsa ceased transmitting its programmes in Europe via Eutelsat.

This was not the first such instance of a problem with a non-Eu channel: Al Manar satellite channel (launched in 2000) was likewise broadcast into the EU using the French satellite Hot Bird 4, also owned by the Eutelsat. It too was deemed to have been broadcasting incitement to racial hatred and an order was made in 2004 by the Conseil d’Etat again instructing Eutelsat to stop the broadcasts. Al-Manar then voluntarily ceased broadcasting so as not to affect adversely those other broadcasters sharing its transponder. This is likely to be a general problem. As Eutelsat noted in 2008, there is a potential problem with regard to instructions to desist broadcasting in that Eutelsat “might not be technically able to cease that transmission without being forced to interrupt the transmission of other television programmes that are part of a single package on the same transponder”. According to Eutelsat, one transponder can carry up to 10 channels in digital mode. As well as affecting those broadcaster’s rights, this could have repercussions for Eutelsat’s business model too.

Some commentators have suggested that the measure is futile as Al-Aqsa continues to be carried on other satellites and via the Internet. Insofar as the EU seeks to regulate content in Europe alone, the fact that Al-Aqsa still broadcasts is presumably not a problem in EU regulatory terms. As for the Internet, it should be noted that the AVMSD does cover some Internet content to and the prohibition on hate speech extends to such content though ofcourse, there are pratical difficulties in enforcing this prohibition.

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