Council of State: the closure of cinemas, theaters and shows, an attack on freedom of expression?
While the decline in activity in the audiovisual and film sectors due to the health crisis has been estimated at nearly 20% of revenues, or a loss of business of -4.9 billion euros in 2020 [1], a reopening of movie theaters does not seem to be for now, after reading an order published by the judge of summary proceedings of the Council of State, last December 23.
Seized by several representatives of the entertainment and cinema sectors in order to suspend the closure of cinemas, theaters and shows ordered by the Government since October 29, 2020 [2], the Council of State considered that this closure was a serious infringement of freedoms, but remained justified by an unfavorable and changing health context.
Noting firstly that “the operators of the establishments concerned have designed and implemented adjustments to professional practices and strict health protocols” to curb the COVID pandemic, the Council of State underlines that “the administration does not produce elements relating to cases of contamination that occurred during shows where such health protocols have been put in place” and that “the risk of transmission of the virus, in establishments hosting live shows as in cinemas, is lower than for other events bringing together the public in closed places, as long as such protocols are effectively instituted and applied”.
Thus, such a restriction represented by the closure of cinemas, theaters and shows is a “serious infringement of the fundamental freedoms of freedom of expression and free communication of ideas, freedom of artistic creation, freedom of access to cultural works, freedom of enterprise and freedom of trade and industry, as well as the right to the free exercise of a profession”.
It also specifies that “the mere fact that some of the activities concerned could remain accessible to the public through other media or in a dematerialized manner does not make this infringement disappear”.
According to the Conseil d’Etat, this serious infringement “would constitute a manifest illegality if it were justified by the mere persistence of a risk of contamination of spectators by the virus”. This restriction would therefore be justified by taking into account the general health context. The measure to close the cinemas is thus legal as long as there is a particularly high level of diffusion of the virus within the general population.
The total closure of movie theaters on October 30, 2020 has therefore interrupted the exploitation of the works that were then distributed there. In order not to penalize producers and distributors and to guarantee public access to audiovisual works, Decree No. 2020-1462 of November 27, 2020, published in the Official Journal of November 29, 2020, grants an exemption of at least 4 months for works that were being exploited in cinemas on October 29, 2020, with a view to their exploitation in VOD, SVOD or DVD/Bluray [3]. This exemption is granted upon request to the National Film Center (CNC).
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By the IP-IT team of UGGC Law Firm
Source: Council of State
[1] Ministère de la Culture, Département des études, de la prospective et des statistiques (DEPS) – Analysis of the impact of the COVID-19 crisis on the cultural sectors – May 2020
[2] Decree No. 2020-1310 of October 29, 2020 prescribing the general measures necessary to deal with the covid-19 epidemic within the framework of the state of health emergency
[3] Decree No. 2020-1462 of November 27, 2020 on exceptional exemption from the time limit for the exploitation of cinematographic works in the form of videograms and Article L231-1 of the Code of Cinema and Moving Images