II-3.4: The French Advertisers’ Self-Regulation Authority forbids two false advertisements

Context and Summary

Brief commentary

Regulating content in media regulation is a very delicate question. As shown by the debates surrounding Internet regulation , freedom of speech, which is a constitutionally guaranteed right in all democratic countries, must be nuanced by public policy concerns. Most often, countries prioritize both principles: the United States radically promote freedom of speech, whereas European judges have the task of maintaining a balance between both principles. Therefore, European, Constitutional, and national judges define the limits between freedom of speech—necessary for public information, and one of the pillars of a democratic society—and public policy concerns, which justify certain censures.

The decision related above is interesting because it is part of a completely different system: self-regulation. Indeed, far from judges and laws, the Office for Advertising Control (Office de contrôle des Annonces) was established as an association including agencies, broadcasters, and media in 1935. In 1953, the Office became the Bureau de Vérification de la Publicité (BVP – Bureau for Advertising Verification), which remains a private institution that gives its opinion before any advertisement can be broadcast. This flexible approvals system can be compared to Regulatory Authorities’ characteristic ex ante intervention powers. In 2008, the BVP was transformed into the Autorité de Régulation Professionnelle de la Publicité (Professional Advertising Regulatory Authority), and following the current trend for all regulatory authorities, created a functional division with the creation of the Jury for Advertising Deontology, which looks very much like what Independent Administrative Authorities call Sanctions Commissions.

Indeed, this is soft law, since the ‘Jury’ (rather than Court or ‘sanctions commission’) uses ‘recommendations’ and does not decide upon sanctions, such as taking an advertisement off the air, itself. It simply asks the ARPP to “take the necessary measures to stop advertisements that do not follow recommendations from being broadcast.”

Of course, the press rapidly announced that the Jury itself had ordered the advertisements to be taken off the air. This leads one to think that if there were an appeal of the Jury’s decision, it would have to take place before the Council of State, because the ARPP’s General Director is only responsible for taking the necessary measures to take the advertisement off the air. This supposes that the Jury has already implicitly ordered the advertisement to be taken off the air, because it explicitly declared that the complaint filed with it concerning these advertisements was legitimate. Furthermore, the ARPP only issues recommendations: the February 23 ruling was based on the Sustainable Development recommendation.

This flexible system of recommendations is especially used in self-regulation, but the Council of State is careful to remind regulators that such recommendations are actually rules, and that when they are grievous, they can be subject to judicial review. The Council of State recently did just this in a case relating to the French Electricity Regulator’s recommendation concerning diffuse effacement.

Judicial review tempers the autonomy of self-regulated systems and is especially necessary in a case such as this, where the decision of this self-appointed Jury affects an advertising campaign commissioned by the Government and relevant professionals. According to the traditional schema, it is astonishing to see a ministerial decision quashed by a decision made by a professional organization: it is the inversion of Kelsen’s pyramid.