In a nutshell

Art. 27 FADP regulates the media privilege. Under certain conditions, the media and media professionals can restrict the right of data subjects to information beyond the general grounds for restriction. The media privilege is only applicable to personal data for editorial publications in periodically published media. The media privilege serves to protect media freedom.

I. General

1 It is undisputed that the FADP also applies to the media. Due to the special role of the media, especially in the context of media freedom including editorial secrecy (Art. 17 FC), Art. 10 aDSG already knew a media privilege (restrictions on the right to information for media professionals). This media privilege was adopted essentially unchanged, as was the corresponding justification (Art. 31 para. 2 lit. d FADP, albeit with adjustments compared to Art. 13 para. 2 lit. d aDSG). The title now mentions the media and no longer media professionals, although the provision still applies to media and media professionals.

2 The general types of restrictions (Art. 26 para. 1 and 2 FADP) and the same obligation to give reasons (Art. 26 para. 4 FADP) apply to the media privilege. Likewise, restrictions must be proportionate and must be examined on a case-by-case basis.

II. Prerequisites for Media Privilege

3 Data controllers who wish to restrict information with reference to the media privilege must cumulatively meet the following requirements: The personal data concerned may be processed exclusively for publication in the editorial section of a periodically published medium (para. 1).

4 Exclusive processing: The personal data concerned may not be processed for any purpose other than publication in the editorial section of a periodically published medium. Any other purpose that is not mandatory by law, such as professional secrecy (cf. Art. 26 n. 9 f.), means that the information cannot be restricted with reference to the media privilege. Personal data in media archives that are accessible to the public are not covered by media privilege.

5 Editorial use: Articles, reports, photo spreads, interviews, commentaries and opinion pieces are considered editorial. Viewed comments from readers, traditionally in the form of letters to the editor, are also considered editorial. Internal and other non-editorial purposes, in particular reader marketing and advertising or communication opportunities for the audience without editorial reference, such as chat rooms, are not considered editorial. Reader comments that are not screened prior to publication are also not considered editorial.

6 Publication: The personal data concerned must be processed with the aim of publishing this personal data or at least contribute to a publication. The wording "processed for publication [...]" means that the restricted information is not limited to processing prior to publication, but is dependent on the purpose of the processing, regardless of the time.

7 Periodically published medium: According to Art. 27 para. 1 FADP, media are all means of disseminating information, including digital means such as email newsletters, social media channels and newsletters. The term "medium" is deliberately formulated in an open and technology-neutral manner. Publication must be periodic, i.e., recurring, without the interval or period always having to be the same. Accordingly, a website published once with editorial contributions or a magazine published once with journalistic content does not qualify as a periodically published medium.

III. Grounds for restriction

A. Protection of sources (para. 1 lit. a)

8 Any inference from the personal data concerned to sources of information of any kind shall be considered a ground for restriction. The ground for restriction goes beyond the protection of sources under Art. 28a SCC, but at the same time requires that the data actually "provide information" and not merely that there is a corresponding possibility. In the case of source protection alone, it should be noted that this does not guarantee protection of sources, but rather allows media and media professionals to protect their sources under certain conditions.

B. Protection of drafts (para. 1 lit. b)

9 This ground for restriction is intended to prevent pre-censorship even if protection of sources (para. 1 lit. a) is guaranteed. It is also referred to as protection of publication: the possibility of prior sifting via the right of access could lead to media and media professionals not publishing content as planned or not publishing it at all. The restriction ground can thus also prevent a "chilling effect".

C. Protection of the public's freedom of opinion (para. 1 lit. c)

10 Freedom of expression and information includes, among other things, the right of every person to form his or her opinion freely (Art. 16 para. 2 FC), including on the basis of the content of the media and media professionals (Art. 16 para. 3 FC). The corresponding justification is intended to protect a well-functioning media landscape.

D. Personal working tool of media professionals (para. 2)

11 This ground for restriction concerns personal data that is not already excluded from the scope of the FADP as personal data processed by a natural person exclusively for personal use (Art. 2 para. 2 lit. a FADP) and is processed by media professionals.

12 Personal information collections or notes would not fall under the exception of Art. 2 para. 2 lit. a FADP if they are disclosed to third parties by media professionals. There may often be a need for this for media professionals, for example in contact with sources and in research.

13 Media professionals are all natural persons who work for the media in the sense of para. 1 in a journalistic, artistic or editorial capacity, on a permanent basis or as freelancers or self-employed, whether paid or unpaid. In 2008, Rosenthal/Jöhri still required a certain level of professional activity and excluded "hobby journalists," which can no longer apply in view of today's media landscape.

Bibliography

Glasl Daniel, Anonyme Kommentare auf News-Portalen und Quellenschutz, Medialex 08 (2022), 7.10.2022 (zit. Glasl, Quellenschutz).

Husi-Stämpfli Sandra, Kommentierung zu Art. 27 DSG in: Baeriswyl Bruno/Pärli Kurt/Blonski Dominika (Hrsg.), Stämpflis Handkommentar, Datenschutzgesetz, 2. Aufl., Bern 2023 (zit. SHK-Husi-Stämpfli, Art. 27 DSG).

Rosenthal David, Das neue Datenschutzgesetz, in: Jusletter vom 16.11.2020 (zit. Rosenthal, Jusletter).

Rosenthal David/Jöhri Yvonne, Handkommentar zum Datenschutzgesetz und weiteren, ausgewählten Bestimmungen, Zürich 2008 (zit. Rosenthal/Jöhri, Art. 10 aDSG).

Schweizer Michael, Chilling Effect im Schweizer Medienkontext, Medialex 10/202, 3.12.2020 (zit. Schweizer, Chilling Effect).