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- Art. 5a FC
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- Art. 96 para. 2 lit. a FC
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- Art. 734f CO
- Art. 785 CO
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- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
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- Art. 10 PRA
- Art. 10a PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
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- Art. 31 para. 2 lit. e FADP
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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)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- 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
- I. General information
- II. Freedom of the media (para. 1)
- III. Prohibition of censorship (para. 2 FC)
- IV. Editorial secrecy (para. 3)
- Recommended further reading
- Bibliography
- Materials
I. General information
A. History (of origin)
1 Media freedom arose as a reaction to the forms of censorship of communication content (cf. on the prohibition of censorship N. 76 ff.). After the invention of printing, these were practised by both the church and the state from the 16th to the 19th century. The ancestor of media freedom is freedom of the press, as for centuries there was no other means of mass communication than printed matter. In Switzerland, freedom of the press was first guaranteed in the Helvetic Constitution of April 12, 1798. After censorship was reintroduced a few months later by the Helvetic government due to critical reporting on the French state, the cantons only began to abolish censorship and guarantee the freedom of the press in their constitutions again during the period of regeneration (1830-1848).
2 Due to the distrust of the conservative cantons, freedom of the press was enshrined in the newly created Federal Constitution in 1848 as a "fundamental federal right of the first hour". The protection of other types of media and other expressions of opinion were not originally provided for in the Federal Constitution. The guarantee of freedom of the press applied for over 150 years until the total revision of the Federal Constitution at the end of the 20th century, when it was transformed into the freedom of the media that applies today.
3 The 1996 draft constitution still listed the "freedom of the press, radio and television" as an aspect of freedom of opinion, information and the media (Art. 14 VE 1996). The explicit inclusion of radio and television in the freedom of the media was made with reference to the case law on Art. 10 ECHR, according to which radio and television also fall within the scope of protection of Art. 10 ECHR and therefore enjoy fundamental rights protection. Against the background of the social importance of the media (cf. n. 8), Parliament finally created a separate provision for media freedom in Art. 17 FC and extended it, like Art. 93 FC (radio and television), to "other forms of public dissemination of performances and information by means of telecommunications" (cf. also n. 14 on this term). This was intended to keep the scope of Art. 17 FC open for future developments of new forms of media. Parliament also added the ban on censorship and editorial secrecy. The new Federal Constitution, which came into force in 2000, thus incorporated Art. 17 FC, which remains unchanged today.
4 Art. 17 FC is closely related to Art. 93 FC, which was incorporated into the Federal Constitution in 1984 as the constitutional basis for the radio and television licensing regime that had existed since the 1920s. In contrast to the press, broadcasting was for a long time characterized by limited distribution channels (scarcity of frequencies) and high financial requirements. For this reason, radio and television broadcasting was designed exclusively as a state monopoly on basic services in order to guarantee a wide range of services for the entire population until the market was liberalized in 2006 (cf. n. 29 and 73). In contrast, the press sector was long characterized by a competitive situation of a multitude of different offerings, as a result of which the adoption of state measures to ensure diversity took a back seat compared to the broadcasting sector (see, however, n. 31 on the current structural change of the entire media landscape).
B. International law guarantees and comparative law references
5 Guarantees under international law are also binding for the understanding and interpretation of media freedom pursuant to Art. 17 FC and must therefore be taken into account. For example, Art. 10 ECHR and Art. 19 et seq. of UN Covenant II protect statements in the media and media activities. Unlike the Federal Constitution, however, these do not enshrine media freedom as an independent standardized guarantee, but rather ensure it as part of comprehensive guarantees of fundamental communication rights.
6 In Swiss case law on media freedom, Art. 10 ECHR is particularly important. Due to the essential importance of free media activity for democracy, the European Court of Human Rights (ECtHR) recognizes particularly stringent protection for media statements and media professionals: Thus, it has consistently held that while the media may not exceed certain limits, it is their duty to disseminate information and ideas of public interest. In this context, it is emphasized that the states' margin of appreciation regarding the restriction of (such) statements of public interest is fundamentally reduced. The Court also recognizes that Art. 10 ECHR does not merely oblige states to refrain from interfering with fundamental rights, but also establishes positive obligations to protect the guarantees (see below n. 18, 22 et seq.). With its differentiated case law and the high level of protection developed for media expressions, the case law on Art. 10 ECHR is therefore also extremely relevant in practice for the interpretation of Art. 17 FC.
7 A comparative legal analysis reveals that specific fundamental rights of media freedom or freedom of the press are also enshrined in other constitutions: Reference should be made, for example, to the freedom of the press and broadcasting guaranteed in Art. 5 para. 1 sentence 2 GG (Germany) as well as the prohibition of censorship stipulated in Art. 5 para. 3 GG. An explicit guarantee of freedom of the press can also be found, for example, in the First Amendment to the US Constitution. In addition to the constitutions with various explicit guarantees of media and press freedom, other constitutions recognize media freedom through case law as part of more general guarantees for the protection of fundamental communication rights.
C. Meaning and function of media freedom
8 Freedom of the media provides special protection for statements made by or through the (mass) media compared to freedom of expression (Art. 16 FC). This specific protection is an expression of the special importance of the media and media-based communication in a democratic society. By processing and communicating information of various kinds, the media should enable the public to form an opinion freely on various topics of public interest (opinion-forming function). By ensuring an unimpeded flow of news and a free exchange of opinions, media freedom thus plays a key role in the formation of public opinion and has an important social and political significance. With this understanding of the mass media as a link in communication between the population and the state, media freedom also has a particular function as an instrument for controlling political and social power. Thus, the ECtHR and (following its case law) the Federal Supreme Court recognize the role of the media as "watchdogs" in a democratic society (see in more detail below n. 9 et seq. on the concept of the media).
II. Freedom of the media (para. 1)
A. Material scope of protection
1. Concept of the media in the context of media freedom
9 In its case law on Art. 10 ECHR, the ECHR bases its definition of the media on their function as public watchdogs (cf. on the meaning and function of media freedom n. 8). Within the framework of this functional approach, it grants enhanced protection in particular to those contributions that are directed at the public and deal with topics of public interest. For a long time, the Court had only granted the higher standard of protection to contributions that were prepared in accordance with professional journalistic due diligence criteria. In the wake of the growing importance of the internet, the ECHR is increasingly allowing non-journalistic contributions to benefit from the enhanced protection under Art. 10 ECHR, provided that they contribute to a debate in the public interest and have been prepared with reasonable care - such as information from an NGO on a website or statements made by a blogger on an internet forum. In the context of the right of access to official information, the Court also ruled that popular social media users also perform functions as public watchdogs and can therefore benefit from enhanced protection. Nevertheless, the ECtHR continues to emphasize the importance of observing professional ethical journalistic due diligence, particularly in view of the flood of information available on the internet.
10 The Federal Supreme Court understands the term "media" within the meaning of Art. 17 FC to mean public, technically disseminated expressions of opinion with non-material content. Accordingly, the statement must be directed at an undefined group of addressees. In addition, the public statement must be stored and transmitted by technical means. This means that, in principle, publicly disseminated information on the internet is also protected by media freedom. With regard to communication via social media, it is sometimes necessary to ask whether the expression of opinion is directed at an indeterminate group of addressees. In view of the various motives of social media users, this question must always be assessed on a case-by-case basis. Furthermore, the public information must contain opinion-forming or idealistic content. In contrast, according to federal court practice (in contrast to the case law of the ECtHR), the fundamental rights of communication are not relevant for primarily commercial content, but rather economic freedom, which offers less protection (Art. 27 FC).
11 It is questionable to what extent the protection afforded by Art. 17 FC presupposes the observance of professional ethical journalistic duties of care. In the context of the accreditation of media professionals, the Federal Supreme Court has declared the legal limitation of the term "media" to journalistic media to be constitutional and referred to the application of the professional ethical duties of care adopted by the Swiss Press Council - the self-regulatory body for media ethics issues. In its more recent practice, the Federal Supreme Court has attempted to define media freedom more clearly in view of digitalization. For example, it does not grant non-journalists any protection under media freedom with regard to access to official information or the justification of violations of personality rights. Parts of the doctrine are also in favor of restricting media freedom to journalistic contributions. If topics in the public interest are dealt with in the context of non-journalistic statements - e.g. by NGOs - Zeller/Kiener, for example, advocate the selective granting of comparably enhanced protection in the context of freedom of expression and information. In our opinion, this view should be endorsed.
12 Finally, certain authors take the view that only journalistic activities of a certain continuity should be protected by media freedom. This is justified by the fact that media require a minimal organizational structure designed for the long term and requiring the corresponding resources in order to effectively perform their special functions. In our opinion, it is questionable whether this criterion, due to its relatively high hurdle, constitutes a constitutive element of the concept of media pursuant to Art. 17 FC or whether it should not rather be regarded as a guiding principle for the classification of a media contribution under media freedom.
13 In summary, it can be stated that Swiss constitutional law also has a functional understanding of the media within the framework of freedom of communication that comes close to the case law of the ECtHR. Greater protection, whether in the context of media freedom or freedom of opinion and information, must be granted to public communication on opinion-forming content that fulfills an opinion-forming and control function that is essential to democracy. This is particularly the case with journalistically prepared contributions that are disseminated within the framework of a certain organizational structure.
2. Protected claims and partial content
a. Protection of media content and protection of institutional aspects
14 Media freedom includes both a content-related and an institutional or organizational aspect. The content side is geared towards the more intensive protection of media content (cf. n. 9 ff. on the concept of media, cf. n. 45 ff. on the effects of special protection in the context of the proportionality test). This special protection is guaranteed regardless of the form or type of media used to distribute the media content; in other words, Art. 17 FC is technologically neutral. While the press includes all forms of printed matter, radio and television are understood to mean the temporal or linear distribution of audio or audiovisual content. Through the catch-all and development clause of "other forms", Art. 17 FC equally protects all current and future forms of public communication distributed by means of telecommunications (cf. n. 4 above).
15 The institutional or organizational aspect protects the media as institutions or organizations and, in this sense, the organizational framework conditions that are inextricably linked to the publication of media content and are necessary for the effective performance of the essential democratic functions of the media (cf. n. 8 on the significance and function of media freedom). This includes the entire process of producing media content, from research and editing to dissemination and storage activities, for example in the form of the explicit guarantee of editorial secrecy (Art. 17 para. 3 FC, cf. n. 88 et seq.). Institutional media freedom also includes the requirement that the media be independent of the state. Art. 10 ECHR also guarantees the organizational conditions on which the media depend in order to fulfil their functions, such as media operations, technical conditions and the state-independent organization of the media. The institutional side of media freedom typically protects against indirect state influence on media content (cf. n. 37).
b. Individual claims and partial content (subjective-legal dimension)
16 In its subjective-legal dimension, media freedom protects specific legal positions of the affected holders of fundamental rights and provides them with justiciable claims. The focus here is on protecting media professionals from encroachments on media freedom, for example by banning an upcoming publication as part of an interim measure pursuant to Art. 261 et seq. CPC or the criminal sanction for a statement that violates a person's honor or privacy. However, media freedom also protects media professionals from being hindered in their research activities, for example by keeping them away from certain places.
17 Of particular practical relevance is also the editorial secrecy specifically guaranteed in Art. 17 para. 3 FC, which in particular guarantees media professionals protection against disclosure of their sources of information (cf. in detail below n. 88 et seq.).
18 Freedom of the media further protects media professionals in their research activities. In this context, freedom of the media also gives media professionals concerned a right to adequate protection by the competent authorities against any (imminent) acts of violence by third parties.
19 Based on Art. 17 FC, media professionals also have a right to disseminate information. This means that all activities relating to the transportation, sale and distribution of media content or products are protected.
20 An obligation of prior notification, authorization or licensing of media products is only permissible under very restrictive conditions. Such a practice represents a serious encroachment on media freedom, which can be tantamount to censorship. For the more strictly regulated radio and television broadcasters, on the other hand, notification, authorization and licensing obligations are considered permissible within the framework of Art. 17 FC and Art. 10 ECHR (see in detail n. 72 f.; see already n. 4 on the more strictly regulated broadcasting sector).
21 Freedom of the media also guarantees media professionals the right not to have to "transport" information from third parties, whereby considerations in this regard are particularly relevant in practice in the more strictly regulated broadcasting sector. According to established case law, there is in principle no so-called "right to an antenna", i.e. no right of third parties or the state to demand that broadcasters disseminate certain information (see also N. 63 et seq. for more details on the exceptions).
22 Traditionally, media freedom has primarily been understood as a fundamental defensive right, which in principle does not confer any entitlement to benefits and, in particular, no right to media promotion measures. Nevertheless, case law and doctrine also recognize specific performance and participation rights in the context of media freedom, be it with regard to access to state information (see n. 23 et seq. below) or with regard to access to (existing) infrastructure. In this context, specific access rights of media professionals to relevant information should be emphasized.
23 For example, freedom of the media confers a right of access to state sources which, according to current Federal Supreme Court case law, (arguably) goes beyond the access rights guaranteed under freedom of information pursuant to Art. 16 FC. The needs of media professionals are also taken into account in the structure of the Federal Freedom of Information Act. For example, Art. 10 para. 4 lit. a FoIA and Art. 9 FoIO oblige the authorities to take the media into consideration when requesting access to official documents based on the aforementioned law. Since 2014, Art. 15 para. 4 FoIO has generally provided for a 50 percent reduction in the fees charged to media professionals.
24 Based on Art. 70 para. 3 CrimPC, media professionals also have more extensive access rights for court reporting on main criminal proceedings than those arising for the general public from Art. 30 para. 3 FC and Art. 69 et seq. CrimPC (see also n. 26, 56, 67 et seq. below). This corresponds to the importance of media professionals as a supervisory body of state action and their role as watchdogs and mediators in these proceedings.
25 Freedom of the media does not have a direct horizontal or third-party effect between private parties. This means that media professionals cannot directly invoke media freedom against influence exerted by the publisher, for example (so-called "internal or in-house media freedom"). Rather, tensions between the media freedom of editorial staff on the one hand and media freedom and the economic freedom of the publisher as an employer on the other hand are not to be resolved directly under the title of constitutional law, but under that of labor law (to be interpreted in accordance with the constitution). Thus, the media freedom of media professionals must be sufficiently taken into account when applying the relevant labor law (cf. Art. 35 para. 3 FC; cf. n. 27 below).
c. Objective-legal dimension of media freedom
26 In its objective-legal dimension, media freedom obliges the state to take the necessary measures for its realization. This follows explicitly from Art. 35 para. 1 FC, according to which fundamental rights must be applied as objective fundamental norms in the entire legal system. On the one hand, the state is therefore obliged to legislate in accordance with fundamental rights, within the framework of which the fulfillment of the essential functions of the media is actually made possible and is not undermined by developments in constitutional reality. Examples include the so-called media criminal law, which provides privileged protection for media statements by limiting the circle of criminally responsible persons (Art. 28 SCC, Art. 322 SCC, Art. 322bis SCC), Art. 266 CPC (cf. n. 57 below), or the aforementioned provisions of Art. 10 para. 4 lit. a FoIA, Art. 9 SCC and Art. 15 para. 4 FoIO (cf. also n. 23 above) as well as Art. 70 para. 3 CrimPC (cf. also n. 23 above).
27 On the other hand, media freedom also applies to the application of the law and requires that the authorities applying the law interpret legal provisions in accordance with fundamental rights. With regard to the scope of application of media freedom, this applies in particular to the application of provisions restricting media freedom, such as those of civil and criminal law, fair trading law or copyright law, in conformity with fundamental rights (cf. n. 53 et seq.).
28 A typical example of the objective-legal dimension of media freedom is the diversity requirement. Although this has gained significance primarily for the broadcasting sector due to historical circumstances (cf. n. 4 above), it applies to the entire media sector. This is because the media must be able to convey as many different topics and opinions as possible to the public in order to guarantee their opinion-forming and control function. The state must therefore guarantee a media order that strives for media diversity reflecting the diversity of opinion. In a democracy, there are numerous different interests and opinions that are fundamentally of equal value. A distinction is made between different dimensions of diversity. The focus is on striving for a diversity of opinions and information on matters of public interest (diversity of content). This diversity of content can be ensured by a large number of different media providers with individual offerings (external pluralism). In addition, diversity of content can also exist within a single media provider (internal pluralism).
29 In the area of radio and television, ensuring diversity is explicitly laid down in the universal service or public service mandate in accordance with Art. 93 para. 2 FC, in addition to other requirements (cf. n. 74 on the concept of universal service or public service). Accordingly, the Confederation has a guarantee responsibility to organize the broadcasting sector in such a way that freedom of opinion and diversity of opinion are optimally guaranteed for the public. This is guaranteed by the federal legislator by transferring the public service mandate of Art. 93 para. 2 FC to the Swiss Broadcasting Corporation (SRG) and also by providing for the granting of so-called licenses with a performance mandate to local-regional broadcasters. These public service broadcasters are obliged to ensure diversity of content in accordance with the diversity requirement under broadcasting law (internal pluralism). This system can be explained historically by the fact that the broadcasting sector was characterized for years by the existence of a small number of radio and television broadcasters (cf. n. 4 above).
30 In contrast to the broadcasting sector, the press sector was long characterized by competition between different providers with individual offerings. The right of each publisher to determine the content tendency of its offering - the so-called freedom of tendency - forms an important component of press freedom as the counterpart of the diversity requirement under broadcasting law and ensures external pluralism in the press sector. Until now, this external pluralism has been considered a sufficient guarantee of diversity of content in this area (cf. n. 4). Attempts to introduce constitutional provisions that would have granted the Confederation the power to ensure diversity and media policy across all media genres have already failed several times. This means that the Confederation must rely on other competence norms to promote press diversity, such as the competence in the postal sector to reduce postal rates for the press.
31 The entire media landscape is undergoing structural change as a result of digitalization. Due to the high reach of so-called information intermediaries such as social media and search engines, advertising revenue is increasingly moving to players such as Google and Meta in particular (until 2021: Facebook). In addition, the public's willingness to pay for journalistic information in Switzerland is consistently low. As a result, the entire field of journalistic media is increasingly characterized by a lack of resources, which makes it more difficult to perform their essential democratic functions. Regardless of the type of media, the competitive situation is thus approaching the previous situation in the broadcasting sector (cf. N. 4 and N. 29) to the extent that the diversity of content is being ensured the longer, the less by a large number of different media providers. In line with these changes in the realm of fundamental rights, we believe that the state's responsibility to take cross-media measures to ensure diversity is likely to be updated. In view of the lack of resources, the focus here is particularly on financial support measures (cf. on state media support N. 74).
B. Personal scope of protection
32 All natural and legal persons involved in the research, production and distribution of media content can invoke media freedom, regardless of their nationality. This means that both media professionals and media companies are protected by media freedom. Auxiliaries of media professionals, such as cameramen, are also covered. In our opinion, media professionals must at least follow journalistic professional rules and demonstrate a certain degree of professionalism in this respect (see n. 9 ff. on the term "media"). Accordingly, the view that writing letters to the editor or comments in blogs or discussion forums, for example, is not a "media-creating" activity whose authors are covered by the personal scope of protection of Art. 17 FC is to be shared.
33 The protection of fundamental rights of legal entities in the context of the fulfilment of a public task is affirmed by the prevailing case law if the legal entity directly and specifically serves the realization of fundamental rights in a specific function. For a long time, the Federal Supreme Court (similar to the municipalities) only granted the SRG a (program) autonomy guaranteed by Art. 93 para. 3 FC within the legally defined performance mandate and thus no protection under fundamental rights. In contrast, a part of the doctrine has always demanded the protection of the SRG under fundamental rights in the fulfilment of its public mandate on the grounds that the SRG "has to fulfill an essential function for the freedom of expression and information [...] precisely because of its programming mandate". In the meantime, the Federal Supreme Court has also affirmed the protection of the SRG under Art. 17 FC in the fulfillment of its performance mandate.
34 The extent to which media users and the public are also protected by media freedom has not been fully clarified in the doctrine. In any case, the public can invoke the freedom of information functionally assigned to media freedom pursuant to Art. 16 para. 3 FC, which sometimes guarantees state-independent access to media information. However, it remains questionable whether interference with media freedom - e.g. state influence on a local newspaper - always also constitutes interference with the freedom of information of media users (e.g. the newspaper readership in question) due to this functional relationship. In any case, the individual would have to meet the requirement of standing to lodge a complaint in order to assert violations of fundamental rights in court. According to the ECHR's practice on Art. 10 ECHR, the fact that a person regularly reads a newspaper does not in itself entitle him or her to complain about a violation of his or her freedom of information by a state ban on this newspaper, as long as a sufficiently diverse media offering continues to exist. Accordingly, in our opinion, it is at least conceivable to invoke freedom of the media or freedom of information if the individual would no longer have access to a sufficiently diverse media offering as a result of a restrictive state measure, whereby the local-regional circumstances must be taken into account.
35 The scope of protection of media freedom is also likely to cover statements that are generated (partially) automatically; in particular, statements made by "journalism bots" should be considered. Journalism bots or artificial intelligence technologies can be used at various stages of the production and dissemination of media statements. Such technologies are currently used as "generators" of media statements, for example in the creation of texts, the editing of images or videos or as chatbots - for example to interact with users for the purpose of personalizing the content. These statements are to be protected as media statements regardless of how they were created; the fact that they were generated (partially) automatically does not exclude them from the substantive scope of protection of media freedom. However, it cannot be concluded from this that corresponding AI applications are themselves subject to fundamental rights.
C. Restrictions
36 Interference with media freedom takes the form of direct legal restrictions such as preventive bans, negative access orders or subsequent sanctions.
37 Another type of interference is indirect restrictions on journalistic activity (also known as indirect interference). Unlike direct interference, indirect interference is not linked to specific media content, meaning that it only has an indirect and less predictable influence on the selection and design of media content. Whether state influence is to be considered direct or indirect depends on the controllability of the influence on the design of media content. The state typically has such means of indirect influence in the context of organizational measures, for example in the organization of the universal service or the public service in the media sector (see n. 72 et seq. on the organizational restrictions on media freedom; see also n. 84).
38 In addition to these legal restrictions, factual restrictions must also be taken into account. These include, for example, physically keeping media professionals away from the location of a demonstration by preventing them from continuing their journey or targeted, public criticism of individual media professionals or media companies by the authorities.
39 Indirect restrictions on media freedom through a so-called chilling effect are not insignificant: the ECtHR in particular emphasizes in its case law that harsh sanctions against media professionals or inadequate protection of sources can lead to media professionals generally refraining from permissible and desirable reporting on certain topics or in selected areas for fear of sanctions.
40 Restrictions on media freedom of the kind described above must in principle be measured against the requirements of Art. 36 FC (see n. 42 et seq. below). Since restrictions - be they of a legal, factual or indirect nature - affect different aspects of media activity and organization, special questions may arise. Accordingly, specific groups of cases have emerged in case law. Therefore, following the general explanations, these different relevant groups of cases will be discussed (n. 52 et seq.).
1. Assessment under Art. 36 FC
41 Restrictions on media freedom must in principle be measured against the requirements of Art. 36 FC. The more serious the interference, the higher the requirements for justification, and the more serious the restriction, the more precisely it must be reviewed by the courts.
a. Legal basis (Art. 36 para. 1 FC)
42 Pursuant to Art. 36 para. 1 FC, restrictions on media freedom require a legal basis, whereby the more serious the restriction is to be classified, the higher the requirements for the level and density of norms. Restrictions are based on various norms of federal law (see in more detail below n. 53 ff.) or cantonal law. For statements on radio and television, the relevant provisions of the RTVA are particularly relevant (see in more detail below n. 60).
43 By way of exception - 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 media freedom without an explicit basis in the law. However, caution is required when applying this exception: For example, the de facto restriction of 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 lack of unforeseeability of the danger.
b. Public interest (Art. 36 para. 2 FC)
44 Restrictions on media freedom pursue various public interests; from the protection of public safety and order, the protection of the authority and integrity of the administration of justice, the protection of public health, public morality, confidential information to the protection of fundamental rights of third parties. Art. 36 para. 2 FC does not contain an exhaustive list of possible public interests for restricting media freedom. However, restrictions that pursue a public interest that essentially runs counter to the protection of the fundamental right are inadmissible. Restrictions for the purpose of preventing criticism of the state are therefore never permissible.
c. Proportionality (Art. 36 para. 3 FC)
45 Restrictions on media freedom must be proportionate (Art. 36 para. 3 FC). A restriction is deemed to be proportionate if it is suitable and necessary to achieve the state objective pursued by the restrictive measure and the measure is reasonable for the person(s) affected by the fundamental rights. When assessing proportionality, case law and doctrine focus on the specific circumstances of the individual case.
46 When examining the proportionality of restrictions on media freedom, the ECtHR regularly points out that the exercise of press freedom is also associated with duties and responsibilities. Accordingly, media professionals must act in good faith and must report reliably and accurately in accordance with the relevant media ethics principles (see n. 11 on the observance of journalistic due diligence as part of the concept of the media). According to the case law of the Court of Justice, media professionals are obliged to provide correct and truthful information. With regard to the journalistic duty to clarify the truthfulness of information, the ECtHR states that the scope of this duty depends in particular on the nature of the accusation or criticism and the seriousness of the possible damage to the good reputation of the person concerned. Media professionals also have a duty to carry out independent research and to verify the information used. However, the requirements for this verification obligation are less stringent when taking information from official documents: Here, media professionals may generally assume that the information contained therein is truthful.
47 According to the case law of the ECtHR, a custodial sentence for journalists based on their journalistic activities is only permissible in exceptional cases for reasons of proportionality, for example if the work of the media professionals concerned seriously impairs other fundamental rights. Furthermore, the ECtHR is generally critical of criminal sanctions against media professionals and emphasizes that it is not only the severity of the punishment, but the very fact of being punished that can have a deterrent effect on journalistic activity.
48 With regard to media criticism of the judiciary, the ECtHR states that there is a particular public interest in access to information on court reporting. Therefore, restrictions or the withholding of information for the purpose of protecting the integrity of the administration of justice are only permissible if there is an "absolute certainty of danger to the reputation of the administration of justice".
49 According to the established case law of the ECtHR and the Federal Supreme Court, media criticism of politicians and other public figures is permissible to a particularly wide extent. However, a distinction must be made here too: Compared to statements concerning the public sphere of these individuals, restrictions on media statements relating to the private lives of public figures are more permissible. When reporting on private individuals, the scope of permissible statements is much more limited; when weighing up the media's interest in information on the one hand and the protection of the privacy or personal rights of private individuals on the other, the latter regularly take precedence, whereby the extent to which the private individual is part of a public debate must be taken into account.
50 In the context of journalistic reporting, media professionals are in principle also permitted to use exaggerated and polemical statements. However, the ECtHR also states in its case law that media professionals may not abuse their rights to make gratuitous personal attacks. It should be noted that, according to the case law of the ECtHR, exaggerated and polemical sweeping judgments are regularly to be classified as evaluations and not as statements of fact. Demanding proof of the truth for the expression of opinions (as opposed to statements of fact) is generally considered inadmissible.
51 Image reporting, which is protected by media freedom, must regularly be weighed against the personal rights of the persons concerned in individual cases. Criteria that are taken into account when weighing up the proportionality of a restriction include the prominence or nature of the person depicted, the contribution of the publication to a debate of social interest, the subject matter of the reporting, the prior conduct of the person, the content, form and consequences of the publication and the circumstances surrounding the production of the image.
2. Restrictions on the content of media freedom
52 Restrictions on media freedom regularly affect the content of planned or made statements or these restrictions are linked to the content of a media statement.
53 Of great practical importance in substantive law is the case law on defamatory media statements, the restriction of which is based on Art. 28 et seq. CC or Art. 173 SCC. The case law states that the relevant standards must be interpreted in accordance with the constitution, but that the information mandate of the press is not a general justification for the violation of personal rights. In addition, it is stated on various occasions that the aforementioned norms themselves represent a concretization of interests protected by fundamental rights and that it is therefore necessary to weigh up the protection of personal rights and the interest in informing the public in specific cases. In political discussions, for example, the defamatory quality of a statement should only be assumed with caution. When assessing the question of whether a statement is defamatory or offensive, case law is based on the so-called "average reader". In its long-standing practice, the Federal Supreme Court defines the information mandate of the press broadly and includes not only information in the narrow sense, but also the provocation of an exchange of ideas and, in principle, (pure) entertainment. In this respect, however, case law specifies that the satisfaction of curiosity or sensationalism is not covered by the media's duty to inform and therefore cannot justify a violation of personality rights.
54 Other relevant criminal law provisions in the context of media freedom include the provisions on the protection of privacy (in particular Art. 179bis ff. SCC, Art. 321ter SCC) and secrets (Art. 293 SCC, Art. 320 ff. SCC) or Art. 261bis SCC, which permits restrictions on specific discriminatory statements and incitement to hatred.
55 In addition, direct and indirect restrictions on content arise from a large number of other provisions. An exemplary list includes restrictions on media statements under competition law, which are imposed in particular to protect the economic reputation of a person based on Art. 3 para. 1 lit. a UCA. The provisions on copyright protection also apply. Art. 47 para. 1 lit. c. is also currently under discussion. BankG, according to which anyone who "discloses a secret disclosed to him [...] to other persons or exploits it for himself or another" is liable to prosecution. This provision constitutes both a direct and an indirect restriction of media freedom.
56 Restrictions arising from the relevant provisions of civil and criminal procedural law must also be taken into account. For example, Art. 261 et seq. CPC allow bans on planned statements and Art. 69 et seq. CrimPC provide for restrictions on court reporting to protect parties to proceedings or third parties.
57 While many of these provisions permit subsequent restrictions on media freedom (in the form of a penalty or the obligation to pay damages or satisfaction, for example), preventive restrictions such as the imposition of a penalty or the obligation to pay damages or satisfaction are also possible, particularly on the basis of Art. 261 et seq. CPC, preventive restrictions such as a ban on a planned media statement are also possible. Due to the importance of media freedom for social and democratic decision-making and the control of political power (see n. 8 above), preventive restrictions tend to be rather severe and can - depending on the type and context - come close to forms of censorship in terms of the severity of the interference. According to the ECtHR, the proportionality of such preventive measures against media statements is assessed according to their scope, their duration, the existence of a justification and the possibility of challenging the ban. The legislator takes this into account by limiting preventive measures against periodically appearing media to situations in which a particularly serious disadvantage threatens and there is obviously no justification via Art. 266 CPC. In view of the severity of preventive restrictions, the adopted amendment to Art. 266 CPC is therefore also problematic: in the new version of the provision, an expected "serious" disadvantage for those affected will suffice in future. The amendment, which is explicitly intended, among other things, as a means of improving the handling of media reports that (presumably) violate personal rights, has also been the subject of controversial debate among academics and the public.
58 When applying the aforementioned standards, the competent authorities and courts are required to take into account the content of media freedom in the respective proceedings by interpreting the restrictive provisions in accordance with the constitution (see also n. 27 above). This includes taking into account the freedom of the media when subsuming a possible offense - for example by narrowly interpreting the concept of defamation in the case of political and other public figures - as well as taking into account the concerns of media freedom as possible grounds for justification. For example, the Federal Supreme Court dealt with the question of whether the recording of a consultation with an insurance advisor for the purpose of uncovering irregularities in this consultation was justified by the interests of media freedom. While the court did not rule out the possibility of justification for the conduct that constituted an offense under Art. 179bis para. 1 and 2 SCC or Art. 179ter para. 1 SCC, it concluded in the specific case that milder means - in particular the transcription of the conversation - would also have been available, which is why the criminal conviction was confirmed. However, the ECHR then assessed the situation in the specific case differently and came to the conclusion that, in view of the contribution to a public debate and the not very serious intrusion into the privacy of the insurance advisor, there was a disproportionate restriction of Art. 10 ECHR.
59 The obligation to interpret and apply the restrictive legal provisions in conformity with fundamental rights also applies to the special case of the reproduction of statements relevant under criminal law as part of journalistic reporting, for example if racially discriminatory statements are reproduced for the purpose of documentation: The reproduction of statements made by third parties is important in the context of media activity; the function of the media is, among other things, precisely to reproduce statements made by third parties. Art. 28 para. 4 SCC explicitly stipulates that truthful reporting of public hearings and official communications by a public authority is exempt from punishment. The earlier judgment in Jersild v. Denmark, in which the Court held that the reproduction of punishable racist statements by third parties in the context of reporting on racism may be permissible, provided that the statements are embedded in a recognizable context and their reproduction clearly serves a public interest, is groundbreaking from the case law of the ECtHR.
60 For statements on radio and television, the content requirements for programming pursuant to Art. 4 et seq. of the RTVA must also be observed. The minimum requirements for program content - such as the obligation to respect fundamental rights (Art. 4 para. 1 RTVA), the requirement of appropriateness (Art. 4 para. 2 RTVA) or - for licensed programs - the requirement of diversity (Art. 4 para. 4 RTVA) (see in detail above n. 29) - are already laid down in Art. 93 para. 2 RTVA. These standards, with their content requirements for the design of radio and television programs, provide the basis for restrictions on media freedom pursuant to Art. 17 para. 1 FC.
61 According to established doctrine and case law, the ban on political and religious advertising on radio and television pursuant to Art. 10 para. 1 lit. d and e RTVA is deemed permissible. The (now more narrowly defined) restriction of this type of non-material advertising serves the interests of the independence of radio and television in relation to political advertising, but also of equal opportunities in the political decision-making process. The ban on religious advertising aims to protect religious peace and denominational neutrality.
62 In general, restrictions on the content of media freedom - if the interference concerns information of social interest and is therefore to be classified as rather serious - must be reviewed with particular precision. In the case of a conviction of media professionals for satirically aggressive criticism of a politician, the ECHR accordingly points out that the Member States' margin of appreciation in such a matter is reduced and concludes that the conviction is not proportionate due to the character of the criticized person as a political person and the role of the convicted person as a media professional and that Art. 10 ECHR is therefore violated. The Federal Supreme Court has taken this case law into account in various rulings, but regularly finds it difficult to meet the requirements of media freedom in the interpretation and application of Art. 173 et seq. SCC or Art. 28 ff. CC consistently and convincingly.
3. Dissemination obligations as a special case of content restrictions
63 The obligation of media to disseminate certain content represents a fundamentally serious interference with media freedom and must therefore be based on a sufficiently specific formal legal basis, be of significant public interest and withstand a strict proportionality test. Accordingly, media distribution obligations must be limited to exceptional cases explicitly provided for in a formal law. Dissemination obligations may take the form of rights of the state or of third parties to make statements or expressions.
64 State statements must be clearly identified as such in view of the principle of state independence and must be disseminated under the exclusive responsibility of the commissioning authority so that the media are not used as a mouthpiece for the authorities (see also N. 87). At federal level, proportionate state rights to make announcements that are limited to certain exceptional situations are provided for, for example, in Art. 8 para. 1 RTVA, according to which licensed radio and television broadcasters can be obliged to broadcast urgent police announcements (free of charge), among other things. In our opinion, however, the official rights of rectification and counterstatement provided for in certain cantonal legal provisions are problematic. These provide for a generally applicable and therefore very extensive right of the authorities to correct misleading or incorrect information relating to the exercise of official authority at will.
65 Third-party rights of disclosure include the right of reply under civil law in the event of violations of personality rights pursuant to Art. 28g et seq. CC (cf. n. 21 above) and, for the broadcasting sector, the so-called "right to antenna". It should be noted that, in accordance with the programming autonomy already guaranteed by Art. 93 para. 3 FC, no one can demand that a broadcaster broadcast certain performances and information (Art. 6 para. 3 RTVA). This means that third parties do not have an independent "right to an antenna". However, such a right exists by way of exception on an accessory basis if the refusal of access is unlawful. The focus here is on the unequal or discriminatory treatment of a third party in its expression of opinion. This is the case if certain third parties, such as political parties, are granted access to the program, but comparable third parties are denied such access without objective reason. For such exceptional cases, the legislator has introduced the access appeal to the Independent Complaints Authority for Radio and Television (UBI) (cf. Art. 93 para. 3 lit. b and Art. 97 para. 2 lit. b RTVA).
66 Until now, an unlawful refusal of access was only affirmed in practice for the special case of the SRG advertising sector in relation to non-material advertising. According to the Federal Supreme Court, the SRG could not justify the refusal of access to the advertising area solely on the grounds that there was a fear that the (non-material) advertising might damage the SRG's reputation. SRG cannot rely on its programming autonomy in the advertising sector in the same way as in editorial programming, but must take into account the freedom of expression of third parties in view of its fundamental rights as a privileged licensee of the Confederation. Therefore, according to the Federal Court, SRG is not only bound by the principle of legal equality and the prohibition of discrimination in the area of advertising, but must also take into account the ideal content of freedom rights and be able to justify corresponding encroachments on fundamental rights in accordance with Art. 36 FC. As the SRG could not rely on a legal basis and did not put forward an overriding public interest, the refusal of access was qualified as unlawful. In our opinion, this balancing decision should be approved. The ECtHR also considered this decision to be admissible.
4. Restrictions on research activities and form of presentation
67 In addition to interference with media freedom in terms of content, restrictions on research activities or the form of presentation must also be taken into account. One example of such a restriction on the chosen form of presentation is the prohibition of video and audio recordings for court reporting in criminal proceedings set out in Art. 70 para. 1 CrimPC. According to ECtHR case law, when assessing the admissibility of image reporting in criminal investigations, court proceedings and of convicted persons, the health condition of the person, the nature of the crime or any connection between the image and the text play a role in addition to the degree of recognition of the person.
68 If media professionals are denied access to a prison in order to protect public safety and order, this also constitutes a restriction of media freedom. The same applies if restrictions are imposed on media professionals' access to public hearings of courts or parliaments in order to protect public health, or if court reporters are excluded from a main hearing for reasons of victim protection. With these access restrictions, it must be taken into account that they can also restrict the chosen form of presentation: If, for example, an interview cannot be conducted due to a lack of access to a place or person, the interview as a form of representation no longer applies.
69 Insofar as these restrictions on research activities and the form of presentation are neutral in terms of content, their application is legally equal and no substantial (one-sided) effects on reporting on topics of social interest are to be expected, they are - in comparison to content-related restrictions - fundamentally less problematic, which is why the requirements for their justification and judicial review are practically less strict. However, they are also only lawful if they are based on a legal basis, pursue a public interest and are proportionate in the specific case.
5. Restrictions on the distribution and dissemination of media products
70 Restrictions on media freedom can also affect the distribution and dissemination of media products. The doctrine points out, for example, that it would be inadmissible if the state were to discriminate against the distribution of certain media products through a (possible) monopoly position in the postal sector. Interventions at the distribution and dissemination stage are also possible on the basis of Art. 2 para. 2 lit. c BWIS. This provision stipulates that the federal government can seize, confiscate or confiscate propaganda material with content inciting violence as a "preventive police measure". Due to this wording, it cannot be ruled out that media products could also be subsumed under the provision as "propaganda material" and could therefore be seized, confiscated or confiscated. Insofar as these are preventive and content-related measures, they are to be regarded as serious encroachments on media freedom. Any restrictions on the distribution of media products are also problematic for the same reason. The ECtHR states that the ban on the sale, distribution and storage of a daily newspaper to protect public safety and order - specifically the fight against terrorism - does pursue a public interest. However, the precise legal basis required for a preventive restriction was lacking. Therefore, the ban is not necessary in a democratic society, i.e. not necessary and therefore not proportionate.
6. Restrictions through structural and organizational measures
71 Interventions through structural or organizational measures usually have an indirect rather than a direct impact on media creation (see above n. 37). These include, in particular, restrictions on market access for media in the form of licensing or concession requirements for media production as well as measures for the basic provision of media services (public service) and forms of state media funding.
a. Restrictions on market access in the form of authorization or licensing obligations
72 In the area of radio and television, the so-called broadcasting clause in Art. 10 no. 1 sentence 3 ECHR provides that Art. 10 ECHR does not prevent states from requiring radio and television broadcasters to obtain a license. Originally, this was intended to allow states to take technical aspects into account so that the use of scarce frequencies could be made subject to a licensing requirement. Following the abolition of frequency scarcity, the content-oriented safeguarding of diversity was also qualified as a legitimate intervention objective and the public interest in ensuring the quality and balance of broadcasting programmes by means of a licensing requirement was recognized. The broadcasting clause thus extends the circle of legitimate aims of interference beyond the aims listed in Art. 10 no. 2 ECHR. In general, the ECtHR grants the states a wide margin of discretion in the selection of the offerings to be approved or licensed. The extent to which the safeguarding of diversity may also be taken into account as a legitimate interest within the meaning of the broadcasting clause outside the traditional broadcasting sector is a matter of debate among scholars. In any case, in our opinion, the broadcasting clause is not formulated in such a way that authorizations outside the broadcasting sector are inadmissible per se. However, as more serious encroachments on fundamental rights, such encroachments are only possible under very restrictive conditions. The question is topical insofar as media diversity is increasingly decreasing in all media genres and state measures to ensure diversity in the media sector, such as media promotion measures, are likely to be updated as a result (see N. 31 on the structural change of the entire media landscape).
73 With regard to Switzerland, the ECtHR held that Switzerland was entitled to require all radio and television broadcasters to contribute to the fulfillment of the universal service or public service mandate pursuant to Art. 93 para. 2 FC by means of a concession obligation and to prescribe general and diverse information for the public. This system, which established broadcasting as a public service monopoly, applied until the market liberalization through the total revision of the RTVA in 2006. Since then, broadcasting has been subject to a mere obligation to register and, in addition to the licensed broadcasters, there are now registered broadcasters who enjoy freedom of tendency (dual system, cf. n. 4). The dual system combines both internal and external pluralism through the admission of providers not obliged to diversity of content (cf. n. 28 f.).
b. Basic provision of media services (public service) and forms of state media funding
74 A further structural or organizational measure to be mentioned is the legally defined basic provision of media offerings, which should be available to the entire population and for all regions of the country according to the same principles (public service). To ensure this basic service, the state issues performance mandates, the fulfillment of which it supervises and finances (cf. n. 4 and 29 for broadcasting). In this way, the state has subtle means of indirect influence on journalistic activity (cf. n. 37 above). The same applies to various forms of state media subsidies such as the reduced postal rates at federal level (cf. already n. 30). In these areas, the state finds itself in a difficult dual role in that it can guarantee media diversity through the organization of the universal service or funding instruments, but at the same time potentially endangers media freedom. Such measures therefore always require a sufficient legal basis and must be in the public interest and proportionate. The organization of a basic service or state funding instruments for media is therefore not inadmissible as such, but media freedom can be violated due to the way in which such measures are structured (see in particular the requirement of state independence as part of the prohibition of censorship in detail N. 84 et seq.).
75 The awarding of advertising contracts by the state can also be considered a special form of state media promotion. As Austria's advertising scandal in 2021 has shown, the state has considerable potential to exert influence in this way. As the state is also fundamentally bound by fundamental rights when acting under private law (see Art. 35 para. 1 FC), it must take the fundamental rights interests of the media into account when awarding advertising contracts. In particular, the principle of equal treatment is central to this. The state must treat all media organizations equally and must therefore always provide objective reasons when selecting or excluding certain media, such as the rapid provision of information to a specific region or circulation. With regard to the requirement of independence from the state, advertising or advertisements originating from the state must also be clearly recognizable as such (cf. n. 87).
III. Prohibition of censorship (para. 2 FC)
A. Concept of censorship
76 Pursuant to Art. 17 para. 2 FC, censorship is prohibited. The prohibition of censorship represents the core content of media freedom. "Censorship" is sometimes used as a generic term for state control of content. However, according to established case law and doctrine, censorship within the meaning of Art. 17 para. 2 FC only stands for preventive and systematic content control (systematic pre-censorship). The purpose of the prohibition of censorship is to prevent the risk of the state controlling or directing the formation of opinion. It is not necessary to prove that a paralysis of opinion-forming has actually occurred in a specific individual case, as the prohibition of censorship is aimed at protecting against threats to media freedom. Furthermore, it is irrelevant that the systematic review only concerns certain forms or content of communication. It is therefore absolutely forbidden to establish state procedures for pre-control of content, such as requirements that systematically subject all publications of a certain media organization, by specific authors or on a certain topic to the approval of an authority or even prohibit them altogether.
77 Preliminary content controls in individual cases are to be distinguished from systematic pre-censorship. According to case law and prevailing doctrine, such preventive interventions do not affect the core content of the fundamental rights of communication, but according to the view expressed here, they always represent serious encroachments on fundamental rights. Such restrictions must therefore be provided for in a formal law and are only permissible in exceptional cases to protect against a concrete, demonstrable, imminent danger to fundamental legal interests such as human life or the maintenance of military security. A not unproblematic example of a preventive intervention in individual cases is the preventive intervention provided for in Art. 28a para. 1 no. 1 CC in conjunction with Art. 261 et seq. Art. 261 ff. CPC to have the judge prohibit the publication of an expression of opinion as a precautionary measure in the event of an imminent violation of personality rights (see n. 57 for more details).
78 Against the backdrop of digitalization, some scholars would also like to see systematic post-publication censorship as absolutely prohibited censorship. This is convincingly justified by the fact that today it is technically possible to block a homepage immediately after the publication of content. Since such procedures are equivalent to pre-censorship in their effect, the time of institutionalized control can no longer play a role in such cases. Against this background, the active searches of the internet for websites with content that is criminally relevant or endangers domestic security, combined with the possibility of blocking Swiss domains, must be described as constitutionally problematic at the very least.
79 Another problem that has arisen with digitalization is the systematic and content-related control of content by private providers of communication services, either on their own initiative or motivated by government measures. As communication services such as Facebook, Instagram, Tiktok or YouTube have high usage figures and are only controlled by a few providers (power of opinion), such monitoring can have a similar effect to traditional censorship, especially if the state gives rise to systematic controls. This applies regardless of whether the state directly obliges the platform operators to monitor or whether they are indirectly induced to do so by the state - e.g. through strict liability rules in relation to illegal content. In addition, such service providers are more likely to restrict content in order to avoid state sanctions, which can result in a kind of "collateral censorship". The state must take such effects into account when regulating communication services so as not to contravene the ban on censorship. At the same time, those content controls that are carried out by opinionated service providers on their own initiative also pose risks to fundamental communication rights. This is particularly the case if the content restrictions are based on imprecise and rapidly changing terms of use, are carried out arbitrarily or without objective reason or even in a discriminatory manner, without those affected being able to effectively defend themselves against deletions. Unlike the state, private service providers are not fundamentally bound by fundamental rights. However, the state must ensure that fundamental rights are also effective among private individuals, depending on their suitability (Art. 35 para. 2 FC). This applies in particular in cases where the effective exercise of fundamental rights by a large number of people is threatened by powerful private individuals.
80 Unlike the Federal Constitution, Art. 10 ECHR does not contain an explicit prohibition of censorship. However, the ECtHR generally applies a strict standard when examining the legal basis and proportionality of preventive interventions. In this context, while the Court declares preventive measures in the form of licensing or authorization procedures in the broadcasting sector to be permissible under certain conditions in light of Art. 10 ECHR (see n. 72 f.), it has classified interventions in the form of publication bans on the future publication of entire newspapers and not just certain types of articles as disproportionate. In the "Manole decision", the ECtHR qualified the preventive control of the news disseminated by the Moldovan public service broadcaster by the broadcaster's governing body, which was loyal to the government, as a disproportionate interference with the freedom of communication of the complaining journalists.
B. Critical examples
81 The following are examples of preventive content control that should be viewed critically with regard to the prohibition of censorship. Firstly, there is the prior official film control for reasons of the protection of minors. This has now largely disappeared in Switzerland, as it has been reduced to defining the minimum age for the admission of viewers for each cinema film. The Federal Act on the Protection of Minors in the Film and Video Games Sectors (JSFVG), which will be adopted in 2022, only contains standardized requirements for age labelling and age control, which means that it is not constitutionally objectionable in this respect. In contrast, in the Canton of Zurich, for example, the age rating of films is linked to the possibility of a screening ban, which does not appear to be unproblematic from a constitutional point of view.
82 On the other hand, the systematic pre-screening of correspondence from prisoners and pre-trial detainees must be viewed critically. It is true that doctrine and case law, with reference to the differentiated application of the ban on censorship for correspondence as individual communication, do not qualify this as absolutely prohibited without further ado. However, individual communication is also protected by the fundamental rights of communication, which means that systematic prior checking of correspondence can only be permitted under very restrictive conditions.
C. State of emergency
83 Under Swiss constitutional law, the core content of fundamental rights also applies in certain situations of state emergency, such as the enactment of federal laws declared urgent without a constitutional basis of their own in accordance with Art. 165 para. 3 FC. The prohibition of systematic prior censorship must therefore also be observed in such times. War situations, on the other hand, are an exceptional situation that is also legally unresolved and requires its own rules. In contrast, Art. 10 ECHR is not subject to emergency law in accordance with Art. 15 ECHR, which means that it can be derogated from both in times of war and in other public emergencies. However, this requires that the situation absolutely necessitates such a derogation (principle of proportionality). Systematic prior censorship is therefore not permitted without further ado because there is war or another public emergency. In this context, the decision of the EU Council on March 1, 2022 to ban the Russian broadcasters Russia Today and Sputnik due to their propaganda for the Russian Federation must be viewed critically. In contrast, the Swiss Federal Council's decision not to adopt the EU sanctions against the two broadcasters on the grounds that it is more effective to counter untrue and harmful statements with facts rather than banning them is, in our opinion, to be welcomed. This is because state restrictions on propaganda are not legitimate per se, but only in the cases provided for by law. The decision by Swisscom AG - a public company and therefore fundamentally bound by fundamental rights - to no longer broadcast the Russia Today and Sputnik channels is therefore difficult to reconcile with media freedom in our opinion.
D. The principle of state independence
84 Systematic pre-censorship can be implemented not only through state procedures of pre-control of specific media content, but also through the control of media activity by means of state organizational measures. This risk exists in particular in the area of the universal service or public service, in which the state issues performance mandates and supervises and finances their fulfillment, as well as in the area of state media promotion (cf. already n. 74 and n. 86 below). In contrast to state procedures of pre-censorship, state organizational measures do not primarily allow for a direct or precise control of content, but rather an indirect and thus merely rough or guiding control of content. This so-called "general censorship" by means of organizational control of media activity by the state is sometimes referred to as institutionalized censorship (cf. already on the requirement of state independence as part of the organizational or institutional side of media freedom n. 15). The prohibition of the control of media activity through state organizational measures is at the same time the core content of the principle of state independence. If the media are to be able to perform their opinion-forming and control function effectively (cf. n. 8), they must not be dominated by the state, but must be independent of it. Since the prohibition of censorship also protects against threats (cf. n. 76), the possibility or the appearance of a dominant influence of the state on the production of media content is sufficient.
85 The minimum requirements of the prohibition of state independence are geared towards ensuring that the state may not carry out media activities itself (cf. n. 87 on the permissibility of state public relations work). This prohibition of functions or activities, which applies to the state in the media sector in contrast to other economic sectors such as telecommunications or postal services, is directed at all three state powers as well as state-controlled companies. In general, this means that state organizational measures leave media organizations considerable leeway in their journalistic activities. In detail, this is guaranteed by various minimum requirements at the normative, institutional and financial levels. For example, the state may not, within the framework of performance mandates or media funding, set such specific requirements for media activities that this is tantamount to actual state intervention. In this context, the greater the proximity to the content, the lower the regulatory density of state requirements must be. When supervising compliance with the established requirements, the state may not exercise any expediency control or technical supervision over the journalistic activity. This requires the outsourcing of media activities to independent or autonomous organizations in this respect. Since the state could also determine the direction of content production by making personnel decisions, the state may not have any influence on the recruitment of operational staff. State representatives, on the other hand, are permitted in strategic management bodies of media as long as they do not hold a strong minority position (principle of the one-third limit). Media organizations may therefore not be structured as public or state-controlled companies, but must be private players. If the state finances media activities, it must allow the media considerable discretion in the use of financial resources. This is ensured, among other things, by the global allocation of state funds to the media (global budgets). In our opinion, financing from the state budget is all the more delicate the greater the state's discretion in making financing decisions and the greater the dependence of media activities on state funding. In this context, the determination of state funding over a longer period of time, for example in a law, can guarantee media organizations a certain degree of financial planning security.
86 Dangers of violations of the state independence requirement exist in particular where the state organizes the basic supply or public service. Similar dangers exist in the context of state funding instruments in the media sector (cf. n. 74). For example, with regard to the state supervision of SRG, Art. 33 para. 1 RTVA provides that the Federal Council may appoint a quarter of the members of the Board of Directors. Although the representatives of the Federal Council enable influence to be exerted on the strategic direction of SRG, this means that the Confederation cannot influence SRG's journalistic activities directly, but at least indirectly. However, as the number of members of the Board of Directors appointed by the Confederation does not exceed the one-third limit (see above n. 85), in our opinion there is no impermissible state control of SRG. Rather, in our view, the statutory right of election can be justified in accordance with Art. 36 FC in that it enables the Federal Council to work towards a politically and federally balanced composition of the SRG Board of Directors in accordance with the principle of diversity and thus towards the fulfillment of the public service mandate.
87 Finally, there is a risk of state media activity in the area of state communication or state public relations. In order for there to be no such activity, the state communication to be carried out by the state must be strictly different in content from the media activity prohibited to the state: While the media activity represents a constitutionally protected and thus thematically unlimited dissemination of information, the state may only disseminate information from its own area of responsibility within the scope of its duty to provide information in accordance with its competencies and thus limited to specific topics. In formal terms, government public relations work must also avoid the appearance of media content and must therefore be clearly recognizable as such (transparency requirement). Within this framework, official information may, in our opinion, be editorially designed and disseminated to the mass media via its own information channels such as printed publications, websites, social media or radio and television - e.g. explanatory videos on upcoming votes, parliamentary debates or media conferences that are clearly marked as governmental - provided that the other principles of government communication, in particular the principles of objectivity and proportionality, are also observed. The same applies to state communication that is disseminated in the form of state advertising, e.g. by media organizations (see already n. 75).
IV. Editorial secrecy (para. 3)
A. Meaning and origin
88 Art. 17 para. 3 FC guarantees editorial secrecy as part of media freedom. The guarantee protects internal editorial processes and information and, in particular, offers protection against the obligation to disclose journalistic sources. The Constitution thus recognizes the importance of this element of media freedom as an indispensable prerequisite for ensuring that the flow of information from private whistleblowers on topics of social interest to media professionals remains guaranteed. If whistleblowers cannot trust that their identity (or anonymity) will be protected and that media professionals can assert a corresponding right to refuse to testify in proceedings, they will be particularly reluctant to disclose information on politically, socially or personally controversial topics. This deterrent effect in the event of insufficient or non-existent guarantees of editorial secrecy would therefore make it much more difficult to report on grievances within public authorities or other fundamentally non-public organizations (such as private companies). In this respect, the protection of editorial secrecy also serves to safeguard the function of the media as watchdogs in a democratic state (cf. n. 8 on this function).
89 Despite the currently recognized importance of editorial secrecy, the Federal Supreme Court denied protection of sources as part of freedom of information for many years. It was only as a reaction to the case law of the ECtHR that editorial secrecy was recognized in 1996 as part of the freedom of the press enshrined in Art. 55 aBV at the time.
B. Material scope of protection
90 As mentioned at the outset, editorial secrecy protects internal editorial processes and information and offers media professionals protection against the disclosure of their sources of information.
91 Editorial secrecy focuses on the protection of journalistic sources. Art. 17 para. 3 FC thus enshrines the right of media professionals to refuse to testify and disclose journalistic sources in proceedings (so-called right to refuse to testify and refuse to disclose). In addition to this actual "protection of sources", Art. 17 para. 3 FC guarantees the confidentiality of internal editorial processes in general and also protects against procedural coercive measures such as house searches or seizures. Editorial secrecy also offers protection against "attempts at circumvention"; if, for example, criminal proceedings are opened against a media professional with the aim of revealing the identity of an informant, the ECHR considers this to be an unlawful deliberate circumvention of the protection of sources and a serious infringement of Art. 10 ECHR. The Federal Supreme Court also agrees with this assessment. The guarantee also offers protection against measures that merely consist of the threat of an obligation to disclose or that could indirectly serve to identify (suspected) criminal acts.
92 From a factual or geographical perspective, Art. 17 para. 3 FC protects all information related to editorial activities and is not limited to information "in the editorial office" or to journalistic sources in the sense of third-party information. Accordingly, media professionals are also protected in particular from the obligation to publish their own research material.
93 For criminal proceedings, Art. 28a SCC and Art. 172 CrimPC specify editorial secrecy and define the scope of protection more narrowly than Art. 17 para. 3 FC: Protection in criminal proceedings is limited to the professional publication of information in the editorial section of a periodically published medium. However, it should be noted that editorial secrecy under Art. 17 para. 3 FC is not limited to criminal proceedings, but also applies in the context of preliminary police investigations, civil proceedings and administrative proceedings. Accordingly, it would be incorrect to limit the material scope of protection of constitutionally guaranteed editorial secrecy in general to the content defined more narrowly by Art. 28a SCC and Art. 172 CrimPC.
C. Personal scope of protection
94 From a personal point of view, editorial secrecy protects all natural and legal persons who create media content (cf. on the personal scope of protection of media freedom n. 32 et seq.). Thus, the scope of protection also goes further in personal terms than the protection under Art. 172 CrimPC in criminal proceedings, which is limited to persons who deal professionally with the publication of information in the editorial section of a periodically published medium (cf. n. 93 above).
D. Restrictions on editorial secrecy
95 Editorial secrecy is not absolute; restrictions are possible provided they are based on a legal basis, there is a legitimate interest in interference and the interference must be considered proportionate (Art. 36 FC). However, due to the importance of editorial secrecy for journalistic activity (cf. n. 88) and the threat of a deterrent effect of legal provisions or an interpretation of these that permits interference too broadly, restrictions on editorial secrecy are only permissible for the protection of high-ranking legal interests and require a careful proportionality test. This means that even in cases in which the right to refuse to testify does not apply in accordance with Art. 28a para. 2 SCC, it must be examined on a case-by-case basis whether or not editorial secrecy can be restricted.
About the authors
Marina Piolino, Dr. iur., wrote her dissertation on the constitutional principle of the independence of the media from the state. She currently works as a media lawyer at the Federal Office of Communications (OFCOM).
Raphaela Cueni, Prof. Dr. iur. LL.M., wrote her dissertation on the constitutional protection of satirical expressions of opinion and is involved in various projects on issues relating to freedom of opinion and media freedom. She is an assistant professor of administrative law at the University of St. Gallen.
Recommended further reading
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Materials
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