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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
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- Art. 25 CCC (Convention on Cybercrime)
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- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- Introductory notes on freedom of expression and freedom of information
- II. Freedom of expression (Art. 16 para. 1 and 2 FC)
- III. Freedom of information (Art. 16 para. 1 and 3 FC)
- Recommended further reading
- Bibliography
- Materials
Introductory notes on freedom of expression and freedom of information
A. History of origin
1 The demand for freedom of speech and expression can be traced back in the history of ideas to antiquity. However, today's guarantees of freedom of expression date back to the Enlightenment and are a reaction to the introduction of censorship and licensing systems, with which various governments and, in particular, the Church reacted to the revolution of book printing in the 16th century and the associated possibility of disseminating opinions quickly among many people.
2 Freedom of expression was first enshrined in positive law in the catalogs of fundamental rights and declarations of human rights of the late 18th century. For example, freedom of expression was included in the Virginia Bill of Rights (1776) (albeit only as freedom of the press) and was also guaranteed a little later in the First Amendment to the United States Constitution (1787), which was added in 1791, and in the French Déclaration des droits de l'homme et du citoyen (1789).
3 In Switzerland, freedom of expression was not enshrined either in the text of the Federal Constitution of 1848 or in the Constitution of 1874; however, both earlier constitutions guaranteed freedom of the press in Art. 45 aBV(1848) and Art. 55 aBV(1874) respectively. In cantonal law, on the other hand, freedom of opinion was already partially guaranteed in the 19th century. The concept of freedom of opinion was also already being incorporated into the case law of the Federal Supreme Court in the 1930s. For example, the Federal Supreme Court based its ruling on a cantonal ban on communist propaganda largely on the argument that the principles of democracy oblige citizens to accept the expression of theories that contradict the prevailing order. The tolerance and permissibility of fundamentally different opinions is a central principle of freedom of opinion - however, the Federal Supreme Court did not yet assign the idea to this fundamental right at this time.
4 Freedom of opinion finally achieved its status as a fundamental right under the Federal Constitution in the 1960s: In a 1961 decision, the Federal Supreme Court described freedom of expression as a “fundamental principle” of federal and cantonal law and, four years later, finally recognized freedom of expression as an unwritten fundamental right under the Federal Constitution. Subsequently, the court held that the then Art. 55a of the Federal Constitution, freedom of the press, was part of a comprehensive unwritten fundamental right of freedom of expression, and continued to develop the fundamental right over the next few years. Following Switzerland's ratification of the European Convention on Human Rights (ECHR), the Federal Supreme Court was guided by the case law of the European Court of Human Rights (ECtHR) on Art. 10 ECHR, which was also constantly evolving.
5 In the context of this development of the unwritten fundamental right of freedom of expression, the Federal Supreme Court was faced in 1978 with the question of whether freedom of information - as the right of access to information from public authorities - should also be recognized as an unwritten fundamental right under the Federal Constitution. The Federal Supreme Court stated that “freedom of information, as a component of freedom of expression and freedom of the press, guarantees the right to receive news and opinions [...] without interference from the authorities and to obtain information from generally accessible sources”. However, freedom of information in this sense does not include the right to be actively informed by the authorities. The court rejected any further recognition as an independent fundamental right due to the lack of recognition as an independent fundamental right in the cantons, among other reasons. This meant that freedom of information as an unwritten fundamental right before 1999 remained limited to protection against state intervention in the procurement of information and to a right of access to “generally accessible sources”.
6 With the total revision of the Federal Constitution in 1999, freedom of expression and freedom of information were enshrined in Art. 16 FC. In line with the idea of updating, the constitutional legislator limited itself to codifying the case law of the Federal Supreme Court; it therefore refrained from enshrining broader guarantees, such as freedom of information.
B. Comparative law and international law
7 At the level of international law, freedom of expression and freedom of information are guaranteed in Art. 10 ECHR and Art. 19 and 20 UN Covenant II, among others. The cantons also guarantee - explicitly or by means of an integral reference to the fundamental rights of the FC - guarantees of freedom of expression and, as a rule, freedom of information in their constitutions.
8 The case law of the ECHR on Art. 10 ECHR is of particular importance for the interpretation and concretization of Art. 16 FC. Since the ratification of the Convention by Switzerland, the case law of the Federal Supreme Court has been largely based on the dynamic case law on Art. 10 ECHR, which therefore plays a decisive role in determining the structure and form of Art. 16 FC today. This can be seen, for example, in the protection of statements that “offend, shock and disturb”, or in the particularly intensive protection of statements on topics of social interest.
9 The guarantees of Art. 19 and 20 of UN Covenant II also provide parallel protection for expressions of opinion. Although these provisions have a comparatively lesser influence on the case law on freedom of expression and information, they are also decisive for the interpretation of the guarantees in Switzerland.
10 Today, all constitutions with catalogs of fundamental rights explicitly guarantee a fundamental right to freedom of expression; freedom of information is often also explicitly guaranteed. A look at Switzerland's neighboring countries shows that the guarantees of freedom of expression and information can take very different forms. For example, the Italian constitution guarantees freedom of expression in Art. 21; freedom of information is not explicitly mentioned and, according to doctrine, is not derived implicitly from the requirements of exercising democratic rights. In Austria, Art. 13 para. 1 of the Basic Law (StGG) guarantees freedom of expression, but also without explicitly enshrining freedom of information. Freedom of information is also not explicitly enshrined in Liechtenstein constitutional law, but is recognized as a necessary part of freedom of opinion in accordance with Art. 40 LV. The Constitution of the Fifth Republic in France does not contain a list of fundamental rights in the written constitutional text of 1958. However, freedom of expression is recognized by case law as part of substantive constitutional law (bloc de constitutionnalité). German constitutional law then guarantees both freedom of expression and freedom of information in Art. 5 para. 1 of the Basic Law (Grundgesetz - GG), and the case law of the Federal Constitutional Court has made differentiated statements on various aspects of the fundamental right since 1949. Finally, mention should also be made of the diverse case law and dogmatics in the United States, which - in connection with the special protection of political statements, for example - also influences the case law of the ECHR on Art. 10 ECHR.
C. Relationship to other provisions of the Federal Constitution
11 Freedom of expression is often referred to as a “subsidiary catch-all fundamental right” within the framework of fundamental communication rights; however, this only takes limited account of the importance of the guarantee in this context. Freedom of expression is initially a fundamental provision within the framework of fundamental communication rights: the dogmatic structures developed under freedom of expression, considerations on the purposes of protection, intensity of protection and restrictions of the fundamental right therefore also apply in principle to the other fundamental communication rights. However, due to the specific protection requirements in each case, individual aspects and issues are particularly accentuated, while others tend to take a back seat.
12 While freedom of expression as a fundamental provision of the fundamental rights of communication protects expressions of opinion and communication in general, the specific fundamental rights of freedom of the media (Art. 17 FC), freedom of speech (Art. 18 FC), freedom of science (Art. 20 FC), freedom of art (Art. 21 FC), freedom of assembly (Art. 22 FC), freedom of association (Art. 23 FC), the right to petition (Art. 33 FC) and political rights (Art. 34 FC) each provide specific protection for communication within a specific framework, via selected means or forms or in a specific context. Accordingly, statements that are subsumed under the freedom of art or the freedom of assembly, for example as art or as part of an assembly, are (primarily) protected under these respective fundamental rights; in this sense, the freedom of expression only applies in a subsidiary manner.
13 Freedom of information under Art. 16 para. 1 and 3 FC is similar to claims for access to information under the other, specific fundamental rights of communication. For example, the Federal Supreme Court protects the right of access to official information for media professionals primarily within the framework of freedom of the media pursuant to Art. 17 FC. In doing so, it takes into account the special need for information of media professionals and their role in a democratic society, which is greater than that of other fundamental rights of communication.
14 With regard to commercial advertising, the Federal Supreme Court and several scholars agree that this type of communication is not protected under freedom of expression pursuant to Art. 16 para. 1 and 2 FC, but rather under economic freedom pursuant to Art. 27 FC (for the distinction between commercial and non-material statements, see n. 22 below). According to federal court case law, statements with a religious reference, such as the expression of religious conviction to the outside world or the dissemination of one's own religion, are protected under freedom of religion (Art. 15 FC).
D. Protective purposes and functions
15 The guarantee of freedom of expression fulfills a protective function for the individual, but also a social and democratic function. The guarantee is initially characterized by the Federal Supreme Court as “un élément indispensable à l'épanouissement de la personne humaine”. The Federal Supreme Court thus recognizes that the expression of thoughts and information of all kinds is an elementary component for the formation and development of the personality of every individual. The formation of one's own opinions and thus the development of one's own personality requires knowledge of, and engagement with, different opinions. The importance of exchanging opinions and thoughts with other individuals is central to this. In addition, the possibility of forming and expressing opinions on an equal footing safeguards fundamental aspects of the autonomy and human dignity of the individuals concerned. The fundamental importance of freedom of expression for the development of the individual's personality leads to the conclusion that expressions of opinion are protected even if their social “utility” is low or the expression is not noticed by anyone.
16 In addition to this function of protecting the individual, the protection of freedom of expression and fundamental communication rights is generally based on the fundamental importance of freedom of expression as a means and prerequisite for social and democratic decision-making. In this context, the understanding of the free exchange of opinions as a means of confrontation with other opinions and views and the resulting development and, if necessary, falsification of existing views is central. With this focus on debate as an instrument for forming opinions, freedom of expression is characterized, among other things, by the conviction that false and harmful statements should not be countered by prohibitions, but by counter-speech. This approach is particularly pronounced in US case law. This understanding of freedom of opinion and opinion-forming is also based on the recognition of the fallibility of all people (and therefore also state institutions) and the conviction that “truth” cannot be the starting point, but can only ever be the result of debate. The resulting mistrust of (state) scrutiny of opinions according to their “truth content” also shapes today's understanding of freedom of opinion.
17 The characterization of freedom of expression as an “indispensable prerequisite” for social and democratic opinion-forming processes refers in particular to the fundamental importance of the free expression of as many opinions and thoughts as possible as a prerequisite for free, democratic opinion-forming processes; in this sense, freedom of expression and the fundamental rights of communication ensure minimum requirements for social and democratic opinion-forming processes at the constitutional level. The ECtHR expresses this aspect of the fundamental right when it states that no democratic society is conceivable without - broadly understood - freedom of expression. It also emphasizes that the confrontation with different opinions allows individuals as part of a society to develop the necessary minimum level of tolerance of other opinions and views, which is necessary for a stable and functioning democratic society. In this respect, the permissibility of the most diverse and even shocking opinions is seen as a necessary prerequisite for life in today's diverse societies.
18 However, the democratic significance of freedom of opinion is not limited to its role as a necessary prerequisite for social debate and democratic decision-making: Freedom of expression also has the important function of controlling state power through accompanying criticism and public debate. This “control function” is particularly pronounced in the case of media professionals. However, it is also recognized in the case law of the ECtHR for other groups with a similar social role, such as NGOs.
19 The central importance of freedom of expression as a prerequisite for democratic and social decision-making as well as the personal development of the individual justifies the special position of freedom of expression and fundamental communication rights as a whole in the structure of fundamental rights. In particular, the social and democratic functions show that expressions of opinion are not only protected with regard to the interests of the individual holders of fundamental rights, but also due to the possible and sometimes even predominant importance of individual expressions for social and democratic decision-making processes. It follows that the protection of expressions of opinion is particularly intensive where the social or democratic significance of these expressions is particularly pronounced.
II. Freedom of expression (Art. 16 para. 1 and 2 FC)
A. Material scope of protection
1. Concept of opinion
20 Opinions within the meaning of Art. 16 para. 1 and 2 FC are information and ideas of any kind that can be communicated by persons to third parties. “Opinions” in the context of Art. 16 para. 1 and 2 FC thus do not merely refer to opinions in the narrower sense as the expression of a certain subjective position, ‘but to the totality of messages of human thought and all possible forms of communication’. This means that statements about facts, such as statistics, information broadcasts or news, are also to be characterized as opinions within the meaning of Art. 16 FC.
21 According to Federal Supreme Court case law, protected opinions are “the entirety of communications of human thought”; accordingly, the question arises to what extent (partially) automated statements are also to be covered by the scope of protection of freedom of expression. According to the view expressed here, statements generated partly and probably also entirely by artificial intelligence are to be understood as “opinions” within the meaning of Art. 16 para. 1 and 2 FC and as such are covered by the scope of protection of freedom of expression. Accordingly, both comments written by humans but multiplied by AI and automatically attached to selected Twitter posts and statements generated entirely by AI from chatbots such as ChatGPT or services such as Siri or Amazon Echo would be classified as expressions of opinion. Insofar as the use of AI in automated statements primarily serves to duplicate a human statement, the protection of such semi-automated statements should be undisputed - in this type of use, AI is primarily a means or tool for duplicating a human statement. Much more questions are raised by statements that can no longer be traced back to a single human author, for example as a statement made by a (learning) chatbot or language assistant. The lack of (direct) human authorship could lead to the conclusion that such “statements” are therefore not expressions of opinion to be protected under freedom of expression. Accordingly, statements made by Siri, the feeds generated by the respective algorithms on social media platforms and search engine results lists would not be expressions of opinion. According to the view expressed here, this assessment should at least not be followed without reservation. Non-human statements of this kind are also potentially important for social and democratic debate. In addition, any restrictions on such statements can have a one-sided influence on the public debate or be designed to do so. For these reasons, (fully) automated statements should also tend to be protected under the freedom of expression. However, it should not be concluded from this protection of non-human statements that programs that generate statements of opinion are carriers of freedom of expression (see also n. 40 below). Rather, the question must be asked to what extent the author or owner of the program should still be protected within the scope of freedom of expression or, more appropriately, within the scope of economic freedom.
22 According to the Federal Supreme Court, the scope of protection of freedom of expression under Art. 16 para. 1 and 2 FC is limited to so-called non-material statements. Commercial statements, i.e. “statements that are aimed at an economic transaction (in particular advertising) or are made exclusively in connection with such transactions”, are, according to established case law, not protected under freedom of expression, but under economic freedom (Art. 27 FC). In my opinion, this view must be endorsed. The different level of protection for commercial statements under Art. 27 FC and for non-material statements under Art. 16 FC takes account of the different protection interests concerned; it thus also corresponds in principle to the differentiated protection that the ECHR grants to non-material and commercial statements respectively under Art. 10 ECHR. The distinction between non-material statements protected under Art. 16 FC and commercial statements protected under Art. 27 FC is relevant when dealing with untrue statements. While a state “truth check” and restrictions based on this in the case of non-material content are regarded as fundamentally inadmissible for the reasons described above in N. 16, the restriction of untrue, because unfair, statements in the case of commercial statements is permissible under the provisions on unfair competition. On the other hand, this distinction plays a role in particular in the context of prior and systematic content controls: While such controls can never be permissible as censorship for non-material statements (cf. on the core content below N. 32 et seq.), prior restrictions of the content (also of a systematic nature) are not per se contrary to fundamental rights in the case of commercial statements, as completely different protection interests are at issue. Both the prior and systematic controls for information, for example on containers and packaging material for medicinal products, as well as the possibility of network blocks for access to gambling are to be considered permissible. However, where an economic statement also has a non-material component, freedom of expression must be taken into account. This is the case, for example, if topics of social interest are also addressed in the context of an advertising statement (e.g. if a food company renames a type of ice cream in support of the introduction of marriage for all), or if the restriction of commercial statements either has the purpose or effect of influencing a debate on a topic of social interest (e.g. if restrictions are sought on an advertising campaign of a sporting goods manufacturer because it shows a trans athlete, among other things).
23 The concept of opinion within the meaning of Art. 16 para. 1 and 2 FC covers not only verbal expressions in writing or speech, but also non-verbal expressions and communicative acts, provided that the act in question serves the purpose of making a statement and is understood or can be understood as such by the public. For example, the Federal Supreme Court recognizes the protection of hunger strikes as an expression of opinion, while the ECHR has in the past subsumed, among other things, the hanging of dirty laundry in front of parliament as a non-verbal expression under the protection of Art. 10 ECHR. However, according to the case law of the Federal Supreme Court, begging is not protected as a non-verbal expression or communicative act. The question of protection under freedom of expression is also raised in the case of road blockades - for example, if a section of highway is blocked in the area of a construction site in order to draw attention to the demand for flexible retirement in the construction industry or to protest against an exhibition of war material by means of a human carpet under the slogan “Whoever walks over us also walks over corpses”. In such cases, it should be determined whether the blockade has an inherent connection to the intended statement; if such a connection exists, it can be assumed that the communicative act is protected under the freedom of expression.
24 The constitutional concept of opinion is also to be understood broadly in relation to the protected content and protects it regardless of its quality or social value. False, nonsensical, morally reprehensible or impulsive statements are also protected. Extremist, racist, discriminatory, pornographic and similar statements are also covered by the freedom of expression as opinions. Thus, freedom of expression also protects in particular those statements that “hurt, shock or disturb” (see N. 8 above).
25 In this respect, the concept of opinion under Art. 16 para. 1 and 2 FC is broader than, for example, that in German constitutional law, which, according to the prevailing view, excludes deliberately or proven false factual assertions as well as so-called “abusive criticism” from the scope of protection of Art. 5 para. 1 GG. The scope of protection of freedom of expression in Swiss constitutional law is probably also broader than that in the case law of the ECHR: In application of Art. 17 ECHR, this excludes revisionist and Holocaust-denying statements as well as other forms of extreme or totalitarian hate speech to a large extent from the protection of Art. 10 ECHR. However, the case law on Art. 17 in conjunction with Art. In particular, Art. 17 ECHR is used both as an element of the limitation of the scope of protection of Art. 10 ECHR and as an element of the assessment of the necessity of the restriction of this provision, without the two approaches being able to be stringently differentiated dogmatically.
2. Protected elements and claims
26 According to Art. 16 para. 2 FC, freedom of expression protects the holders of fundamental rights “to formtheir opinions freely and to express and disseminate them without hindrance”. Individuals are thus protected in their right to form their opinion freely, to have an opinion and to express it to the outside world.
27 The right of every individual to form an opinion presupposes in particular that the holders of fundamental rights have access to the information and opinions of others. For this reason, this aspect of freedom of expression is closely linked to the fundamental right to freedom of information (Art. 16 para. 3 FC) and the guarantees specifically protected in Art. 34 para. 2 FC in the run-up to elections and votes.
28 The right to have an opinion is “the basis of the freedom to express an opinion”. This “freedom of inner opinion” is an elementary part of human nature and is therefore also understood as the core content of freedom of opinion. The mere holding of an opinion can therefore never be the basis for a legal sanction.
29 As freedom of expression, Art. 16 para. 1 and 2 FC also guarantees the holder of a fundamental right the right to express their own opinion, i.e. to communicate it to the outside world and disseminate it to others. The protected right to express an opinion also includes, in particular, the right not to express an opinion or to remain silent. It also protects the holders of fundamental rights from being forced to disclose information or opinions. In principle, the right to express an opinion also protects the free choice of means and forms of expression.
30 In its subjective-legal dimension, freedom of expression provides the protected holders of fundamental rights with various justiciable claims. As a defensive right, the guarantee protects against direct, indirect, prior, subsequent, legal and de facto encroachments on the fundamental right. In addition, freedom of expression also gives the protected holders of fundamental rights specific claims to protection and performance. For example, authorities are obliged to protect participants in public demonstrations from violence or attempts at disruption by third parties and thus to guarantee that these events (and thus the exercise of protected fundamental rights) can “actually take place”. The ECHR also recognizes such a (justiciable) duty to protect under Art. 10 ECHR to the effect that authorities are obliged to protect the media professionals working there in the event of repeated, massive attacks on a newspaper editorial office. Case law also recognizes a “conditional right” in the sense of a right to benefits under Art. 16 in conjunction with Art. 22 BV. Art. 22 FC also recognizes a “conditional right” to the use of public land for the purpose of expressing opinions, i.e. “[t]he fundamental rights in question require, within limits, that public land be made available for demonstrations”. A comparable “conditional” right of access in the sense of a state service is generally also assumed for the use of administrative property for communicative purposes, although case law tends to be more cautious, at least if - unlike in the case of public property - alternative communication forums exist.
31 State performance obligations are then also concretized in the guarantee of claims to organization and procedures. For example, if the Federal Supreme Court guarantees individuals legal recourse via the Independent Complaints Authority for Radio and Television (UBI) for the deletion of their comments on online forums and in the SRG's social media channels, the court guarantees the individual holders of fundamental rights access to legal proceedings in which they can assert suspected restrictions on their freedom of expression. It should also be noted that Art. 12 FC (right to assistance in emergencies) is also used to argue for a minimum right to information and participation in social discourse. This aspect of freedom of expression is also currently being discussed in connection with issues such as the regulation of communication via online platforms.
3. Core content
32 The core content of freedom of expression - i.e. content that is particularly worthy of protection and in need of protection, which may not be restricted under any circumstances - is initially the prohibition of censorship explicitly enshrined in Art. 17 para. 2 FC. The systematic classification as part of the freedom of the media is explained by the historical development of the fundamental right; however, according to federal court rulings and a majority of voices in the doctrine, the prohibition of censorship also represents an absolute barrier to the restriction of all fundamental communication rights and, in particular, freedom of expression, over and above the freedom of the media.
33 The concept of (absolutely prohibited) censorship within the meaning of Art. 17 para. 2 FC is understood primarily as the systematic and prior content control of expressions of opinion. However, prior restrictions based on the content in individual cases, as well as subsequent systematic content controls, are not covered as a priori impermissible measures that violate the core content.
34 The absolute prohibition of censorship in this sense can be derived from the importance of freedom of expression for the formation of social opinion: Censorship within the meaning of Art. 17 para. 2 FC has the effect of preemptively restricting the opinions permitted in public discussion and thus determining the spectrum of opinions permitted in terms of content. Such a prior restriction of the spectrum of permissible statements contradicts the idea that the free formation of social will presupposes the permissibility of all opinions in principle and that truth or correctness does not take precedence over public discourse, but can only ever be the result of this discourse. The restriction of the permissible range of opinions through censorship also results in a reduction in the diversity of opinions expressed and thus an impairment of the role of freedom of opinion as a means for society to deal with this diversity of opinions. By restricting the available spectrum of opinions, censorship also impairs the function of freedom of expression as a means of forming the identity of each individual. As a result, censorship - as a prior and systematic control of content - runs counter to several core protections of the fundamental right and is therefore never permissible.
35 In addition to the prohibition of censorship, the so-called forum internum is also protected as core content. This absolute protection of the “holding” of an opinion is justified by the fact that it would violate the dignity of a person as an independently thinking and acting individual to prohibit him or her from holding an opinion and thus from merely “thinking”, or to force a person to hold an opinion in the sense of endorsing certain opinions or expressing innermost views.
B. Personal scope of protection
36 The protection of freedom of expression applies to all natural and legal persons, regardless of their nationality. Children and young people are also protected by freedom of expression, regardless of their age.
37 In particular, the fundamental right also protects persons with a special status (public employees, prisoners, military personnel, etc.). In specific cases, however, the respective special status relationship may give rise to further restrictions on freedom of expression.
38 State bodies and authorities are not subject to freedom of expression - they are, however, subject to fundamental rights. However, questions of demarcation arise in the case of statements made by representatives of the authorities or the state: if they speak on behalf of an authority - for example, a Federal Councillor at a media conference on the decisions of the Federal Council - this constitutes a statement by an organ of the state. If the same persons make statements as private individuals, they are covered by the personal scope of protection of freedom of expression as natural persons. However, it may not always be possible to clearly determine whether a person is expressing themselves as a representative of a public authority or as a private individual - as shown, for example, by judgments of the Federal Supreme Court on interventions by members of public authorities (presumably as private individuals) in voting campaigns. The relevant criterion for the distinction must be whether the addressees or the public of the statement could understand it as a statement by a private individual or as a statement by a public official or state representative.
39 With regard to the fundamental rights of legal persons with special proximity to the state, the Federal Supreme Court now considers the SRG to be a holder of fundamental rights within the framework of Art. 17 FC - and no longer only protected by the program autonomy enshrined in Art. 93 para. 3 FC. It seems unclear whether religious communities recognized under public law are subject to fundamental rights under Art. 16 FC; the Federal Supreme Court generally treats complaints from these as questions of ecclesiastical autonomy and not as questions of religious freedom, for example.
40 In principle, (partially) automated statements are also to be protected as expressions of opinion (see above n. 21). However, this does not mean that programs that generate expressions of opinion are subject to freedom of expression. Where AI merely serves to disseminate and reproduce statements, i.e. to bring a human statement to a larger audience in the sense of an instrument of dissemination, the person behind the statement is itself a holder of fundamental rights. Where statements are partly or entirely generated by artificial intelligence, these statements should be protected as opinions, as explained in N. 21. This raises the question of the extent to which the protection of such statements is mirrored by the protection of a fundamental right holder in the sense of an author of the statement in question. According to the view expressed here, a distinction must be made between the authors or owners of the programs and their users. Protection of the authors or owners of the respective programs within the scope of freedom of expression is to be rejected insofar as they do not directly influence the content of the statement or make a statement. However, the users of the application are protected under freedom of expression - for example, the user of Amazon Echo who gives verbal instructions to the “machine” or the user of an application such as ChatGPT in the generation and adaptation of prompts and outputs. However, since the various AI applications are part of the functionality of the corresponding programs and platforms, the owners or authors are not protected under freedom of expression, but they are protected under economic freedom. In concrete terms, this means that a state obligation to unilaterally design the feed of a search engine in a certain way would have to be analyzed as a fundamentally problematic interference with freedom of expression from the user and addressee side with regard to the potential impact on the social debate - however, the owner or operator of the search engine is not restricted in its freedom of expression but rather in its economic freedom - namely to design the feed and the algorithm used in a certain way.
C. Restrictions on freedom of expression
1. Intensity of protection
41 Freedom of expression protects statements regardless of their content and social value. However, not all statements are protected to the same extent. It follows from the functions of freedom of expression that individual statements are at the core of the concerns of freedom of expression due to their content, while others are also protected, but their protection is less intensive due to a less close connection to the functions of the fundamental right.
42 These different intensities of protection are expressed, on the one hand, by increased material requirements for the restrictions of more intensively protected expressions and, on the other hand - particularly in the case law of the ECtHR - by increased requirements for the density of justification of such restrictions.
43 Expressions of opinion on topics of social interest, so-called “political communication”, are considered particularly worthy of protection. As set out in N. 16 et seq., the social significance of freedom of expression lies in particular in ensuring the free exchange of as many opinions as possible, thereby creating the conditions for broad social debates and thus also for free democratic decision-making. Accordingly, opinions that are particularly central to the political debate and the formation of opinions on politically and socially relevant topics are particularly well protected. The Federal Supreme Court - taking up the case law of the ECtHR - accordingly states that freedom of expression is of particular importance when it comes to statements on political issues and problems of public life and that criticism “must be permissible in a certain breadth and sometimes also in an exaggerated form”. The concept of political statements is defined broadly: As statements on topics of social interest, meaning not only statements on politics in the narrow sense, but all statements on topics of public life. These can be of a political, social, economic, cultural, religious or, under certain circumstances, commercial nature. Satirical statements are also to be classified as political communication and are therefore particularly well protected under freedom of expression.
44 Art is also particularly protected due to its importance in a democratic society. Of practical importance in the case law on art is, for example, the protection of statements that offend, shock or disturb, as well as an awareness of the need to interpret unclear or ambiguous statements. However, at least in the past, the ECtHR has provided comparatively less intensive protection for art in relation to political communication, for example by granting (and granting) states a wider margin of appreciation when assessing a restriction for the protection of religion or public morality.
45 The protection afforded by freedom of expression is less intensive for racist, revisionist, incitement to violence, pornographic or other expressions of opinion with qualified reprehensible content - expressions that are now regularly summarized under the term “hate speech”. With Art. 261bis SCC, Switzerland has a legal basis to prohibit particularly reprehensible and dangerous forms of discrimination and incitement to hatred; it thus (partially) complies with the obligations under international law arising from Art. 4 of the Convention on the Elimination of All Forms of Racial Discrimination. Similarly, Art. 258 f. SCC and Art. 197 SCC make it possible to restrict statements inciting violence or pornographic statements based on the respective content of the statement. However, since even “qualified reprehensible” statements often concern topics of social interest, the above categories must be interpreted narrowly as exceptions.
2. Concept and types of interference
46 Restrictions on freedom of expression must generally be assessed in accordance with the requirements of Art. 36 FC. The encroachments are defined in different ways and must be assessed differently depending on the type and timing of the encroachment.
47 Prior or preventive restrictions on freedom of expression prevent the information in question from being disseminated in the first place and thus have the effect of preventing the opinions in question from entering the public debate in the first place. Such measures, for example in the form of precautionary measures in civil proceedings pursuant to Art. 261 et seq. CPC, therefore represent particularly intensive encroachments on freedom of expression. The case law of the ECHR on Art. 10 ECHR therefore stipulates that the conditions for preventive restrictions on the expression of opinions must be clearly defined in law and pursue an important public interest.
48 In contrast, retrospective restrictions such as criminal or civil sanctions, loss of license or disciplinary measures are not considered serious per se. In terms of their severity, they are to be assessed primarily according to the consequences for the holders of fundamental rights affected.
49 In turn, content-related restrictions tend to be problematic, in contrast to interventions which, as restrictions on statements at a certain place or time, are fundamentally neutral in terms of content. Since content-related restrictions keep the statements concerned out of public discourse or at least limit their presence in the formation of public opinion, such interventions tarnish the model of free social debate in which individuals can form their opinions in a free exchange of arguments and counter-arguments, regardless of the quality and social value of these.
50 Not only legal, but also de facto restrictions on the expression of an opinion, such as the confiscation of documents, eavesdropping on conversations, keeping people away from a rally and similar measures, constitute interference with freedom of expression.
51 In the context of freedom of expression, indirect restrictions through a so-called chilling effect take on particular significance. A chilling effect (or deterrent effect) is when holders of fundamental rights refrain from expressing opinions that are in principle permissible (and therefore desirable in social discourse) for fear of sanctions or due to an unclear legal situation, i.e. they are deterred from exercising their fundamental rights. Such a deterrent effect can be caused by vague legal provisions, unclear case law, but also particularly severe sanctions for the expression of opinions. For example, the Federal Supreme Court has tended to affirm the possible chilling effect of DNA profiling and identification during a peaceful demonstration. The chilling effect is also of particular importance in connection with the protection of journalistic sources. Since the chilling effect by definition affects and deters opinions that are permissible and desirable as part of the social debate, this type of restriction indirectly affects the social or political debate beyond the individual case; interference through chilling effect, even if indirect, can therefore be particularly problematic from a fundamental rights perspective in individual cases.
3. Assessment of restrictions under Art. 36 FC
a. Legal basis (Art. 36 para. 1 FC)
52 Pursuant to Art. 36 para. 1 FC, restrictions on freedom of expression require a legal basis, i.e. a basis in the form of a general abstract norm.
53 The more serious the encroachment in a specific case, the higher the requirements for the level and density of the respective basis for encroachment. In Art. 36 para. 1 sentence 2 FC, for example, the Federal Constitution stipulates that serious restrictions must be provided for in the law itself. With regard to the density of norms, the ECtHR states in its case law that the legal basis in question must be formulated so precisely that those affected by the law can act accordingly and foresee the consequences of certain behavior with a certain degree of certainty. The more serious the interference, the higher the requirements for the precision of the legal basis.
54 In many cases, restrictions on freedom of expression are based on various legal bases in civil law (in particular Art. 28 et seq. CC) and above all in criminal law (such as Art. 135 SCC, Art. 173 et seq. SCC, Art. 197 SCC, Art. 259 et seq. and in particular Art. 261bis SCC, Art. 296 et seq. SCC). However, Art. 3 para. 1 lit. a UCA, other federal and various cantonal legal norms are also relevant. In view of the requirements mentioned above in N. 53, in particular the necessary density of legal norms, individual provisions of simple law are probably not sufficiently precise: Some doctrine criticizes, for example, the insufficiently precise wording of Art. 261bis SCC (discrimination and incitement to hatred), which falls “far” short of the requirements of the principle of legality.
55 Case law and doctrine state that the requirements for the legal basis may be less strict in special status relationships. This applies primarily to standards that regulate the specific form of the special status relationship; here, both the requirements for the level of the standard and the density of the standard are to be applied less strictly. In contrast, the requirements for the legal basis are not lowered with regard to the standards establishing the respective legal relationship.
56 The statutory provisions that serve as the basis for restricting the expression of opinions must be interpreted and applied in accordance with fundamental rights in light of Art. 16 FC (see also N. 76 f. below on the indirect third-party effect and interpretation in accordance with fundamental rights).
57 Exceptionally - in the event of a serious, immediate and otherwise unavoidable danger to high-ranking legal interests - the general police clause (Art. 36 para. 1 sentence 3 FC) permits a restriction of freedom of expression without an explicit basis in the law. However, caution is required when applying this exception: For example, the de facto restriction of freedom of expression (and media freedom) by preventing a journalist from continuing his journey to the WEF in Davos is not covered by the general police clause according to the ECtHR due to the foreseeability of the danger.
b. Public interest and protection of fundamental rights of third parties (Art. 36 para. 2 FC)
58 According to Art. 36 para. 2 FC, restrictions on freedom of expression must be justified by an overriding public interest or the protection of fundamental rights of third parties.
59 Art. 36 para. 2 FC does not provide an exhaustive list of possible public interests for restricting the fundamental right. In practice, the list of possible public interests in Art. 10 para. 2 ECHR provides guidance: the provision mentions, for example, the protection of public security or the maintenance of public order, the protection of public health or public morals, the protection of (fundamental) rights of third parties, the prevention of the dissemination of confidential information or the safeguarding of the integrity and impartiality of the judiciary.
60 Restrictions to protect interests that run counter to the core of the protection of the fundamental right are not permissible. It would therefore be inadmissible to restrict freedom of expression solely for the purpose of preventing criticism of the government or to ban “peripheral” opinions held only by a minority in order to protect the majority of the population from being confronted with such opinions, which may be unpopular or “shocking”.
c. Proportionality (Art. 36 para. 3 FC)
61 According to Art. 36 para. 3 FC, restrictions on freedom of expression must be proportionate. A restriction is deemed to be proportionate if it is suitable and necessary to achieve the desired state objective and if the measure is reasonable for the person(s) affected by the fundamental right. When assessing the proportionality of restrictions on fundamental rights, the specific circumstances of each individual case must be taken into account. This raises questions of both the intensity and the precision of the interference in the specific case.
62 When reviewing the proportionality and, in particular, the reasonableness of restrictions on freedom of expression, the ECtHR regularly refers to the importance of the fundamental right for a democratic society. Following on from the particular intensity of protection for statements on topics of social interest, the Court recognizes that the Convention leaves little room for restricting so-called political statements and that such restrictions must therefore be subject to particularly strict scrutiny.
63 The status of the person affected by a statement, particularly in the context of defamatory statements, is also relevant when assessing the proportionality of a restriction on freedom of expression. According to the established case law of the ECtHR - and also the Federal Supreme Court - politicians and other public figures must endure a particularly high level of public criticism and must therefore also show a high degree of tolerance towards verbally offensive statements. However, public persons also enjoy a right to privacy, which is why the broad permissibility of statements is primarily given in the public sphere of the persons concerned. However, where parts of the private life of a public person are of social relevance or interest, the restriction of such statements concerning private life is only permissible under restrictive conditions. In the case of private individuals, the assessment of the proportionality of a restriction must primarily be based on whether and to what extent the statements in question are part of a public debate.
64 Next, doctrine and case law also take into account the status of the person(s) making the statements when assessing the proportionality of restrictions on freedom of expression. As mentioned in n. 37, further restrictions on freedom of expression may be justified for persons with a special status. The ECtHR and the Federal Supreme Court recognize that the status and duty of loyalty of public employees, teachers, civil servants and judges may give rise to a certain duty of restraint or a reason to restrict freedom of expression. At the same time, however, the Court of Justice and the Federal Supreme Court have stated that, particularly in the case of topics of interest to social debate, such restrictions are only permissible in a restrictive manner and their necessity must be convincingly demonstrated. Based on these considerations, the Federal Supreme Court classified disciplinary measures against a lecturer at a state university for a leaflet campaign (with a cautiously worded leaflet) on a topic of public interest as an unlawful interference with freedom of expression.
65 Pupils and students also have a special status in the context of (higher) education. However, the Federal Supreme Court already emphasizes in its earlier case law that pupils and students are protected by freedom of expression and may not be sanctioned for legally permissible statements that are compatible with the obligations arising from the special status relationship. In my opinion, in view of the relevance of freedom of expression for the formation of the personality and the ability of pupils and students to express themselves, it is also necessary to demand that restrictions resulting from the special status relationship - for example, for didactic considerations to maintain teaching operations - are applied restrictively and precisely justified.
66 The freedom of expression of female doctors and lawyers is also specifically assessed in case law: While professional ethics permit restrictions on freedom of expression in the case of doctors, restrictions on statements critical of the judiciary are more justifiable in the case of lawyers due to their function in the administration of justice than would be the case for media professionals, for example.
67 The ECtHR has developed special criteria for assessing proportionality in the assessment of sanctions imposed on employees for whistleblowing, regardless of whether they are employed under public or private law. In this context, the Court states that the protection of Art. 10 ECHR also extends to relationships under private law and that the legislator has a duty to protect individuals from, among other things, restrictions on their freedom of expression by private individuals. The Court also derives a minimum duty to protect whistleblowers from this principle: In assessing the proportionality of sanctions for such persons, the ECtHR takes into account the so-called Guja criteria, i.e. whether alternative means of disclosing information were available, what the public interest in the disclosed information is, whether the information is authentic, what the disadvantages are for the employer and whether the person acted in good faith. As in many other cases (N. 74), the severity of the sanction is also taken into account here.
68 As mentioned in N. 36, the personal scope of protection of freedom of expression also extends to the same extent to persons without Swiss nationality. Art. 16 ECHR does provide for the possibility of (additional) restrictions of, inter alia, Art. 10 ECHR for the “political activity of foreign persons”. A corresponding attitude also influenced the understanding of freedom of expression and assembly in Switzerland for a long time: for example, the “Federal Council Decree on Political Speech by Foreigners” made the participation of foreign speakers in assemblies subject to a permit requirement until 1998 (!). However, an additional possibility of restriction or a more generous assumption of the reasonableness of restrictions on freedom of expression solely on the basis of nationality is rightly considered outdated today.
69 The relevant, concrete circumstances that must be taken into account in individual cases when assessing the proportionality of a restriction on freedom of expression also include the intensity of the infringement of the legal interest. In order to assess this, the context, the chosen means, the form or the effects of the statement in the specific case are taken into account: As an element of context, for example, when assessing an allegedly offensive statement, the preceding events, for example in the context of a heated political debate, are included. The chosen form or means of the statement are taken into account in particular with regard to their impact on the opposing interests concerned. In connection with the protection of privacy or personal rights in general, for example, certain means and forms of expression have a particularly strong impact on the fundamental rights of those affected. The impact of statements with a wide reach, and in particular image reporting, is taken into account by case law, which generally assumes that the personality rights of the person concerned are more intensively affected.
70 The assessment of defamatory statements and the proportionality of their restrictions play an important role in practice. In addition to the considerations regarding the need for protection (N. 62), the persons affected and expressing themselves (N. 63 et seq.) and the context (N. 69), the distinction between factual assertions and evaluative statements is regularly relevant to the question of the reasonableness of restricting defamatory statements. The admissibility of statements about facts is primarily determined by whether they are true or untrue. While the provision of proof of the truth is a central element for the admissibility of a statement (affecting honor) in the case of factual allegations, the ECtHR's case law does not consider it reasonable to demand proof of the truth for evaluative statements. It should be noted that the concept of value judgments is broadly defined in the case law of the Court and also includes exaggerated sweeping judgments. The reasonableness of pure value judgments, on the other hand, is assessed, among other things, according to whether they can be supported by a sufficient factual basis.
71 In case law, it is also relevant to assess the proportionality of restrictions on freedom of expression to protect the interests of the general public, such as public health, the protection of state secrets, the protection of the integrity of the judiciary or public order and security. The latter interest often plays a role in restrictions on freedom of expression in the context of the use of public land for communicative purposes. The case law of the Federal Supreme Court considers an authorization requirement for communicative use of public land that goes beyond public use to be fundamentally proportionate for the purpose of coordinating different usage interests (and thus public order). When reviewing the approval or non-approval of demonstrations for the protection of public safety and order, case law regularly has to assess whether milder measures, for example in the form of conditions, protective measures or local or temporal postponements, would have been possible.
72 The question of responsibility for statements made by third parties, particularly on social media platforms, is also addressed in the case law of the ECtHR as a question of the proportionality of the restriction of freedom of expression. In recent years, both the Federal Supreme Court and the ECtHR have addressed the question of whether and under what criteria politicians and other public figures can be held liable for comments made under their (public) postings. While the Federal Supreme Court addressed this question of criminal liability without explicit reference to the guarantee of freedom of expression, the Court in Sanchez v. France dealt in detail with the question of how such liability should be assessed under Art. 10 ECHR. Referring to its case law on liability for third-party comments online, the ECtHR identified the context of the statements, the measures taken by the complainant, the possibility of holding the actual author liable and the consequences of the proceedings for the complainant as relevant criteria in the proportionality assessment. Of particular importance in this context is the question of the extent to which the person who makes a posting is obliged to monitor the comments and, based on this, to delete them if necessary.
73 There is also a question of responsibility - albeit for one's own statements and not for statements made by third parties - when it comes to restricting the expression of opinions by selected public officials: Art. 162 para. 1 FC guarantees selected public officials at federal level immunity for statements made in the Councils and their bodies and creates the possibility of other forms of immunity in para. 2. Thus, in addition to the absolute protection for statements made in the Councils (see Art. 16 ParlA), members of Parliament also enjoy relative immunity for statements made in direct connection with their parliamentary activities on the basis of Art. 17 f. ParlA. Similar guarantees of immunity can also be found in cantonal law. This means that the respective persons cannot be held accountable for statements that are fundamentally unlawful and therefore lawfully restricted in the contexts described.
74 The type and level of any sanctions are also taken into account when assessing the proportionality of an interference.74 The ECtHR considers criminal sanctions for allegedly defamatory statements against politicians to be particularly serious and therefore generally unreasonable. It therefore examines such restrictions with particular precision. In the context of sanctions for expressions of opinion, any chilling effect of a restriction must also be taken into account. In the case of severe sanctions, for example, it is not only the impact of the sanction on the sanctioned person in the individual case that is relevant, but also the fact that such a sanction may deter other people from making similar statements in the future.
D. Objective-legal dimension of freedom of expression
1. Realization of freedom of expression
75 According to Art. 35 para. 1 FC, fundamental rights are to apply as objective fundamental norms throughout the legal system. Freedom of expression thus not only acts as a subjective-legal content that gives the individual claims to defence, protection or performance, but in its objective-legal dimension it also obliges the authorities to take the necessary measures for its realization.
76 Thus, freedom of expression is concretized on the one hand as a guideline for the interpretation and application of simple legal provisions. In case law, this often concerns the interpretation of the statutory provisions for the protection of statements in civil and criminal law that violate personality rights or defamation, and regularly concerns corresponding statements in the media.
77 In its programmatic dimension, freedom of expression obliges the legislator, in application of Art. 35 para. 1 FC, to enact legislation that complies with fundamental rights and realizes fundamental rights, which ensures a communication framework in which the fundamental right can perform the individual and social functions assigned to it. At the forefront of the discussion here is the guarantee of a minimum of communicative equality of opportunity, for example through the provision of the necessary technical infrastructure or the granting of access to the relevant communication channels or also by taking the necessary protective measures. In the area of radio and television, there are also questions of safeguarding “pluralistic diversity”.
2. Objective-legal dimension of Internet communication in particular
78 Currently, internet communication in particular and the threats to public communication and relevant communication structures that arise in this context raise questions about the realization of fundamental communication rights. For example, scholars argue that specific threats to social communication posed by new communication structures and phenomena could oblige the authorities to take specific measures and intervene in a regulatory manner to protect the relevant fundamental communication rights processes and structures.
79 Initial regulations in this regard - such as the German NetzDG and later the EU's Digital Services Act (DSA) - focus on providers of large platforms (primarily social networks and search engines) and formulate requirements for them regarding the enforcement of (already applicable) legal norms. In addition to requirements for the deletion of illegal content and transparency regulations, the relevant provisions of the DSA (and the standards it replaces in the NetzDG) also include an obligation for the respective providers to define contact persons and specific procedures in which affected persons can take action against deleted (or non-deleted) content on a platform. The latter measures can be seen as an attempt to safeguard the content of freedom of expression by creating procedures.
80 For expressions of opinion in the run-up to elections, the corresponding French provisions oblige the operators of online platforms to create transparency in the three months before the elections with regard to the originators of information, the flow of funds and the use of users' personal data in connection with the political decision-making process. It also provides for the possibility of taking legal action against incomplete, false or misleading information on these platforms. With these provisions, France is attempting to protect social communication in preparation for specific democratic decisions - and thus particularly sensitive content that is at the heart of the fundamental rights of communication - against manipulative influences.
81 The informal agreements between the EU (Commission) and providers of major platforms, which have been in place since 2016 (revised in 2022) and 2018 respectively, are in a legally diffuse area. In two codes of conduct, the signatory providers undertake to take action against illegal hate speech and misinformation. Due to their unclear legal nature, their relatively broad applicability to only vaguely defined content and the unanswered questions regarding the accessibility of deletion procedures, for example, these agreements tend to be problematic from the perspective of freedom of expression.
82 The question of the extent to which the legal framework for large platforms regarding the deletion or blocking of content and accounts for “legal” statements based on their own “house rules” is necessary to protect basic communication law structures has not yet been legally clarified. In the literature, it is generally assumed that such deletions or blocks are generally permissible based on the economic freedom of the operators, but that the operators must guarantee requirements for procedures and fundamentally equal and non-discriminatory access due to their market power. In the United States, provisions have recently been enacted in various states that severely restrict any deletion, sorting or labeling of (legally permissible) posts by platform operators based on the content of the statement. This is based on the argument that the deletion (but also, for example, the marking as “false” or sorting) of legally permissible statements due to their content violates the freedom of speech enshrined in the First Amendment to the United States Constitution. While the corresponding Texas law was deemed permissible by the Court of Appeals for the 5th Circuit in September 2022, the Court of Appeals for the 11th Circuit deemed a similar provision from Florida unconstitutional in May 2022. Under these circumstances, a clarifying ruling by the US Supreme Court seems likely in the near future.
83 In the summer of 2023, the U.S. Supreme Court did not provide a conclusive answer to questions relating to the algorithmic sorting and recommendation of posts based on search and view history on social media platforms. In two cases, the complainants accused various social media platforms of suggesting content to their users based on past searches via the algorithm used, thereby promoting and supporting terrorism. In this regard, the court in Twitter, Inc. v. Taamneh held that the acts of recommending and sorting by the major platforms did not have the quality and intensity of favoritism required by law and therefore the platforms could not be held liable in the present case. In the absence of substantive reasoning, the matter in Gonzalez was remanded to the lower court with instructions to apply the reasoning from Twitter, Inc. v. Taamneh to the case. Accordingly, the intriguing question raised in Gonzalez v. Google remained open as to whether the providers of the platforms have to comply with certain obligations in the design of the feeds and algorithmized recommendations, and - linked to this - whether the creation of a feed “only” constitutes an offer of third-party content or whether an act of expression is itself linked to it.
84 It is also still largely unclear whether - and if so, how - the close link between the economic power of the few large platform operators and their equally significant power or sovereignty over communication spaces and thus communication content should be dealt with legally from the perspective of basic communication law. The same applies to the question of the imperative or possible necessity of state regulation in dealing with the algorithmic sorting of communication content or the question of the extent to which labeling obligations or upper limits for contributions to machine-generated statements can be sensible measures.
85 When dealing with these unresolved issues, it generally seems important that the purpose of any (future) regulatory models is not forgotten. Appropriate approaches should safeguard relevant communication processes and structures and thus guarantee the individual and social functions of freedom of expression. This regulatory purpose can also be used to formulate requirements as to how these regulatory approaches should or should not be designed.
86 In my opinion, it would be inadmissible to oblige platform providers to delete or otherwise moderate “false information”. Such an obligation to take action against “false” statements would contradict one of the central ideas of freedom of expression, according to which the means against false and harmful statements are not prohibitions, but counter-speech and, accordingly, a state “truth police” is met with great mistrust. For these reasons, such a labeling obligation may be justifiable in specific situations - for example in the sensitive environment in the run-up to elections and votes - but it would not be permissible as a general obligation.
87 Based on similar considerations, a clear name requirement for interactions on social networks, for example, may initially seem sensible as a measure against (often anonymous) inflammatory, defamatory or similar “harmful” statements. However, such an obligation would (before the issue of implementation and enforcement is even addressed) contradict the idea that freedom of expression also protects the right to make anonymous statements.
III. Freedom of information (Art. 16 para. 1 and 3 FC)
A. Active and passive freedom of information
88 In addition to freedom of expression, Art. 16 para. 1 FC protects freedom of information and guarantees - specified in para. 3 of the same provision - every person the right to receive information freely and to obtain and disseminate it from generally accessible sources.
89 Freedom of information formulated in this way guarantees, on the one hand, passive freedom of information (also known as freedom of reception) and thus protects the right of the individual to receive information without interference by the state.
90 On the other hand, Art. 16 para. 1 and 3 FC also protects the active freedom of information and thus a right of access to state information. However, according to para. 3 of the provision, this active side of the fundamental right is limited to information “from generally accessible sources”. The wording of the Constitution thus confirms the old case law of the Federal Supreme Court, according to which freedom of information does not establish a state obligation “that the authorities must provide information about their activities” and therefore limits the right of access to “generally accessible sources”. The Federal Supreme Court has upheld this principle to this day.
91 Which sources are considered generally accessible is primarily determined by simple statutory law. For example, certain registers, parliamentary hearings (in principle) or public court hearings are considered generally accessible, but not, for example, the co-reporting procedure or deliberations of parliamentary committees. The Constitution therefore (continues to) leave the specification of this aspect of active freedom of information to the legislator.
B. Principle of the public nature of the administration
92 In fact, the restriction to generally accessible sources at federal level has been greatly relativized since 2006 by the Federal Public Information Act (FoIA): With the entry into force of the Act in 2006, the change from the principle of secrecy to the principle of publicity of the administration was completed at federal legislative level. For example, Art. 6 para. 1 FoIA now guarantees every person the right to inspect official documents and to obtain information from the authorities about the content of official documents. This right of access is not dependent on the existence of specific interests in inspection, but is guaranteed “unconditionally”. While the right is not absolute, but can be restricted in individual cases where there are conflicting private or public interests in confidentiality, the FoIA enshrines the principle that information from all authorities covered by the scope of the Act is in principle publicly accessible.
93 While access to official documents was previously “generally subject to a fee ‘ in accordance with Art. 17 para. 1 FoIA, the revised provision has stipulated since November 2023 that ’in proceedings for access to official documents [...] no fees shall be charged”. This change from the principle of mandatory fees to the principle of no fees is to be welcomed.
94 At cantonal level, too, there has been a steady development in recent years towards establishing a principle of public administration. Today, the vast majority of cantons guarantee the principle of public access and thus a right of access to official administrative information without any preconditions in the cantonal constitution or enshrine such a right in law.
95 A development towards the fundamental public nature of official information as part of the freedom of information can also be observed in international law: In particular, the ECHR in recent case law also recognizes a fundamental right of access to official information as part of Art. 10 ECHR. According to the ECtHR, the prerequisite for a right of access to official information is that access to information is a necessary condition for the exercise of freedom of expression or freedom of the press. In particular, a right of access must be assumed if the information requested serves a public interest or concerns a topic of social interest, the applicant has a social control function and the information sought already exists as such and is easily available.
C. Further development of active freedom of information?
96 In view of the developments of recent years and decades described in Nos. 92 to 95, it is questionable whether limiting active freedom of information to access to “generally accessible sources” is still tenable today. Rather, a further development of the freedom of information under Art. 16 para. 1 and 3 FC is called for. Recent developments suggest an understanding of freedom of information according to which the wording of Art. 16 para. 3 FC only expresses one aspect of freedom of information, but the right today - derived from Art. 16 para. 1 FC - would have to be understood more broadly in the sense of a fundamental right of access to official information, regardless of whether it is considered generally accessible or not. In concrete terms, this would mean that the constitutionally protected right of access to official information would in principle extend to all official information and would no longer be limited to information that is classified as publicly accessible by the legislator - this would apply in particular to those cantons that do not currently apply the principle of public access. Furthermore, restrictions on the right of access at a statutory level or in specific individual cases would have to be justified by an overriding interest and be proportionate. It remains to be seen whether and to what extent the Federal Supreme Court will undertake a corresponding further development of the freedom of information and the legal entitlement under the Freedom of Information Act and the relevant cantonal provisions in the coming years.
About the author
Prof. Dr. Raphaela Cueni, LL.M. is Assistant Professor of Administrative Law at the University of St. Gallen. She has been researching legal issues in the area of fundamental communication rights for several years. Contact: raphaela.cueni@unisg.ch.
Recommended further reading
Barrelet Denis/Werly Stéphane, Droit de la communication, 2. Aufl., Basel 2011.
Blasi Vincent, The Checking Value in First Amendment Theory, in: American Bar Foundation Research Journal, Vol. 2, 3 (1977), S. 521 ff.
Bollinger Lee C., The Tolerant Society, Oxford 1986.
Bollinger Lee C./Stone Geoffrey R. (Hrsg.), Social Media, Freedom of Speech and the Future of our Democracy, New York 2022.
Garton Ash Timothy, Free Speech. Ten Principles for a Connected World, London 2016.
Heinze Eric, Hate Speech and Democratic Citizenship, Oxford 2016.
Hoffmann-Riem Wolfgang, Kommunikationsfreiheiten. Kommentierungen zu Art. 5 Abs. 1 und 2 sowie Art. 8 GG, Baden-Baden 2002.
Kosseff Jeff, Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation, Baltimore 2023.
Peduzzi Roberto, Meinungs- und Medienfreiheit in der Schweiz, Zürich 2004.
Schauer Frederick, Free Speech. A Philosophical Enquiry, Cambridge 1982.
Schauer Frederick, Fear, Risk and the First Amendment: Unravelling the Chilling Effect, in: Boston University Law Review, Faulty Papers, Paper 879, 58 (1978), S. 685 ff.
Schefer Markus, Kommunikationsgrundrechte, in: Diggelmann Oliver / Hertig Maya / Schindler Benjamin (Hrsg.), Verfassungsrecht der Schweiz, Zürich 2020.
Sunstein Cass R., Democracy and the Problem of Free Speech, New York 1993.
Sunstein Cass R., Why Societies Need Dissent, Cambridge (MA) 2003.
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Materials
Botschaft über den Beitritt der Schweiz zum Internationalen Übereinkommen von 1965 zur Beseitigung jeder Form von Rassendiskriminierung und über die entsprechende Strafrechtsrevision vom 2.3.1992, BBl 1992 II 269 ff. (zit. Botschaft Art. 261bis StGB).
Botschaft über eine neue Bundesverfassung vom 20.11.1996, BBl 1997 I 1 ff. (zit. Botschaft BV).
Botschaft zum Bundesgesetz über die Öffentlichkeit der Verwaltung (Öffentlichkeitsgesetz, BGÖ) vom 12.2.2003, BBl 2003 1963 ff. (zit. Botschaft BGÖ).
Europäischer Gerichthof für Menschenrechte, Guide on Article 10 of the European Convention of Human Rights. Freedom of Expression. Updated on 28 February 2023 (zit. ECHR, Case Law Guide Art. 10, Rz. …).