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Case:
D. 2001, 1748 Case Tibéri
Date:
24 February 2001
Translated by:
Tony Weir
Copyright:
Professor Sir B. S. Markesinis

Given that M. Tiberi asks the single judge of the Conseil d’État to apply L.521-2 of the Code of Administrative Procedure and “order the Supreme Broadcasting Council to require Canal+ either to extend its projected television debate so as to include all the candidates who lead the lists in the constituencies, or to give up the project entirely, on pain of a financial penalty, if necessary…”

Given that under article 1 of the Law of 30 September 1986 “broadcasting is free”, and that if the Supreme Broadcasting Council was tasked by that law to ensure respect for the principles laid down in articles 1 and 3, including equality of treatment and the expression of multiple currents of thought and opinion, and if, in the terms of article 16(2) “in periods of electoral campaigns the Council makes recommendations to those licensed to broadcast”, still the Council has no power under these texts or any other to substitute itself for the licence-holders as regards the formulation or operation of their editorial policy, and the Council’s general power to apply a sanction after notice of default cannot be deployed until it has been determined that a default has taken place;

Given that, in line with article 16(2) of the Law of 30 September 1986 the Supreme Broadcasting Council made a recommendation, dated 28 November 2000, and published in the Official Journal, “in view of the cantonal and municipal elections of 11 and 18 March 2001 licence-holders must see to it that the candidates and lists of candidates and their supporters are given fair access to the camera and microphone, taking all the candidates into account … 4° In special programmes and talk-shows the Council requests licence-holders to take particular care when issuing invitations to respect the principles mentioned in 1° and 2° above”; by a communication of 8 February 2001 it added that “in cases where two candidates likely to be thought important by electors in the forthcoming election are to be accorded a special platform, the Council requests licence-holders to ensure that their rivals are provided with a forum for putting their views forward for the information of the electorate. The Council regards it as very important that all the candidates are treated fairly as regards their access to the camera and microphone…”
Given that if the decision of Canal+ to have a debate between two opposing candidates rather than any other form of broadcast was in principle a matter of editorial policy, it must still ensure that such choice involves no breach of the principle of equal treatment of the candidates;

Given that after deciding to broadcast an hour-long debate on 28 February 2001 between M. Delanoë and M. Seguin, both candidates for the mayor’s office supported by the main national parties, Canal+ made it clear to M. Tiberi and M. Contassot, both prior to the hearing and at the hearing itself, that they could speak the following day at the same time, either together in a debate like that between M. Delanoë and M. Seguin, or separately in a fifteen-minute interview with a staff journalist, and that Canal+ was also proposing to give time to a representative of each of the other four lists of candidates;

Given that while the decision of Canal+ to organise a “duel” between M. Delanoë and M. Seguin before the first vote does not in itself breach any rule or principle, nevertheless it leads to certain practical difficulties in ensuring that candidates are treated equally, difficulties increased in this case by the fact that M. Tiberi, although not enjoying the same support as M. Delanoë and M. Seguin, was the outgoing mayor and wished to be continued in office, and so it is essential that in opting for the “duel” between M. Delanoë and M. Seguin Canal+ make proposals apt to ensure that the candidates are treated fairly; that the Supreme Broadcasting Council should exercise its powers to see that this is so, and should inquire whether the proposal that M. Tiberi have fifteen minutes with a journalist to present his views constitutes fair treatment or whether a longer interview would not be appropriate;

Given that it is laid down in article 521-2 of the Code of Administrative Procedure that the power of the single administrative judge “to make any orders necessary to protect a fundamental freedom” is conditioned on that freedom having been “the subject of a serious and obviously illegal invasion”;

Given that while the free expression of differing currents of thought and opinion is a fundamental freedom, nevertheless the facts put before the single judge cannot be regarded as constituting “a serious and obviously illegal invasion”, and that therefore, subject to what has been said about the role of the Supreme Broadcasting Council, the request of M. Tiberi must be rejected;

….

DECIDES:
1. Subject to the need for the Supreme Broadcasting Council to discuss with Canal+ what solutions could be adopted which would ensure that the candidates are treated fairly and equally, the request of M. Tiberi is rejected; …..

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