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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 16 CCC (Convention on Cybercrime)
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- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 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)
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- Art. 38 AMLA
FEDERAL CONSTITUTION
FEDERAL ACT ON DIRECT FEDERAL TAX
MEDICAL DEVICES ORDINANCE
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
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
FEDERAL ACT ON MEDICINAL PRODUCTS AND MEDICAL DEVICES
TAX HARMONISATION ACT
- I. Purpose of Art. 28 of the SCC
- II. Exclusive Criminal Liability of the Author (Para. 1)
- III. Two-tiered subsidiary liability (para. 2)
- IV. Publication without the Author’s Consent (para. 3)
- V. Immunity from Prosecution for Truthful Reporting (para. 4)
- Bibliography
- Materials
I. Purpose of Art. 28 of the SCC
1The special provision on media criminal law in Art. 28 of the SCC reflects the high importance of the fundamental rights to communication guaranteed by the Constitution, in particular freedom of expression and freedom of the press.
2 Under the freedom of expression enshrined in Art. 16, para. 1 and 2 of the FC, every person has the right to form their opinion freely and to express and disseminate it without hindrance. Freedom of the media is also one of the central aspects of freedom of expression.
3 Freedom of the press under Art. 17 para. 1 of the FC guarantees the unimpeded flow of information and serves to protect the free exchange of views. This encompasses not only investigative reporting but also the provision and dissemination of information and opinions to an indefinite number of recipients. The associated freedom of media production is, as a “fundamental social resource,” a structural prerequisite for a democratic constitutional state.
4 As a source of information, the media serve as a link between the state and the public. In their watchdog role, they should be able to uncover abuses within the state and society without hindrance and contribute to the oversight of official activities. Furthermore, public discourse is to be ensured through freedom of expression and the associated diversity of publications.
5 This constitutional framework leads to the understanding that the media, as vehicles of public criticism and oversight, require a specific legal framework. Through the cascading liability in Art. 28 of the SCC and the associated focus on a primarily responsible person, the risk of criminal liability for those involved in the production and dissemination of media products is specifically reduced. This modification or limitation of the rules on perpetration and participation prevents a “chain reaction” of criminal liability across all stages of media production and distribution and strikes a balance between media freedom and the need for criminal sanctions.
6Since it is often not possible to reliably determine in cases of media offenses whether and to what extent a person has contributed to the criminal publication, it is also necessary from a criminal procedural perspective to ensure that criminal prosecution focuses primarily on a single person in order to prevent cumbersome and complicated proceedings to establish liability.
7 Without mandatory and exhaustive cascading liability, there would be a risk that participation in the dissemination of new, potentially controversial ideas would be restricted or even suppressed. This would deprive the media of their foundation as an institution of the democratic public sphere and their function as a watchdog of society. Art. 28 SCC therefore serves to avoid repressive deterrent effects and to protect freedom of expression and freedom of the press.
8 The purpose outlined above raises the question of whether the special provision developed for traditional media is—or should be—transferable to social media. Given the general accessibility of publishing opportunities on the internet and the changed media landscape, granting special treatment under Art. 28 of the SCC appears questionable and requires further research.
II. Exclusive Criminal Liability of the Author (Para. 1)
A. Definition of “Media”
9 Art. 28 SCC requires the commission of a criminal act “through publication in a medium.” Applicability is thus linked to the use of a medium.
1. Understanding of the Term in the Context of Traditional Media Structures
10 The term “printing press,” which was central to the development of the provision, encompassed all products that could be reproduced in unlimited quantities by means of a mechanical process, such as brochures or posters.
11 In the 1996 revision of media criminal law, the legislature based its approach on a “comprehensive media perspective,” adopting a broad and flexible understanding of the term “media” in order to account for rapid technological developments. It thereby envisaged an expansion of the scope of application to all means capable of being used for communication and thus “to all media.” However, it refrained from providing a normative definition of the term. This results in an open and dynamic understanding of the term, the concrete interpretation of which is left to legal doctrine and case law.
12 The majority of current legal doctrine as well as case law is based on a functional concept of media, which is not limited to mass media but encompasses all physical and electronic means that can be used for communication. In addition to traditional communication vehicles, such as newspapers, magazines, or radio, the Federal Supreme Court also considers electronic means of communication, such as video, teletext, or videotext, to be media. Periodicity is not a prerequisite, so that one-off or irregular media products are also covered, in particular publications in books or motion pictures. Likewise, it is irrelevant whether reproduction takes place within an organized business or outside of it.
2. Understanding of the Term in the Context of Social Media
13 The emergence of social media raises the question of whether these also fall within the scope of Art. 28 of the SCC. Based on a broad understanding of the term, the overwhelming majority of legal scholars assume that social media falls under the definition of a medium. However, critical voices are also being raised, calling for a restriction to commercially organized media companies or arguing that social media such as Facebook or Twitter do not, in principle, qualify as a medium within the meaning of Art. 28 of the SCC.
14 Social media is a collective term for a variety of digital, networked infrastructures and technologies that enable the online creation, editing, and publication of content, facilitate access to and dissemination of information, and support active participation and relationship-building among people. Social media takes various forms. In addition to social networks, microblogs, newsgroups, instant messaging services, and audiovisual media sites, hybrid forms are also possible.
15 This understanding of the term makes it clear that classifying social media as an umbrella category does not in itself allow for a direct conclusion as to whether, in a specific individual case, a media product relevant under media criminal law exists in a medium covered by Art. 28 SCC. The Federal Supreme Court emphasizes that the broad definition of “media” does not mean that social media must automatically be classified as a medium. It qualifies the independent requirement of the medium by basing the applicability of Art. 28 SCC in individual cases on whether “the media product is made available to the public.” The scope of application thus shifts from the mere concept of a medium to the requirement of actual public accessibility.
16 To prevent this shift, the classification as a medium must be contingent on whether a medium can make intellectual or visual content accessible to a larger group of persons not personally connected to one another and is therefore suitable for public dissemination. The requirement of publication, on the other hand, encompasses the concrete use of the medium and must be examined as a separate prerequisite.
B. Publication
1. Requirement of Public Access
17 The criminal act must be committed through publication. Publication occurs when content is put into circulation and is thereby removed from the author’s sphere of control or influence, as a result of which the author can no longer control the recipients’ access to it.
18 The content must therefore be publicly accessible so that it can be perceived by an indefinite number of people or a larger group of individuals who are not connected by personal relationships. Consequently, content that remains within a private sphere—where the private sphere is characterized by family and friends or a special relationship of trust—is not considered published. This includes, in particular, communication between individuals via email or text message. This requirement of public accessibility distinguishes the scope of application from direct communication, which does not fall under Art. 28 SCC.
19 Content is also considered published if it is made accessible to a limited group of recipients, provided that it can in principle be noticed by any interested person within that group. This is the case, for example, when a brochure with a print run of two hundred copies is distributed in a municipality.
20 Actual awareness of the content is not required. The time-limited nature of accessibility does not negate the publication. Even if content is later recalled or removed, it is considered published.
21 For press publications, the start of delivery—for example, by handing them over to the post office—is decisive for publication. For electronic media, the requirement of public accessibility is met not only on websites but also in communications in newsgroups, via apps, or through distribution via mailing lists, provided these are directed at a broad audience.
22 In the case of social media platforms, it is generally assumed that they are directed at the public. An exception applies if the author deliberately makes a post accessible only to a limited group of people through individual settings. Communications disseminated in closed, personally connected communication circles therefore do not fall within the scope of Art. 28 SCC. A post may therefore be considered a publication in a medium if it is directed at a larger, non-personally connected group of people. To date, posts on the world’s largest social network, “Facebook,” as well as on the microblogging platform “Twitter,” have been explicitly classified as publications in a medium.
2. Limitation to media-specific involvement
23 A publication may require not only the production but also the distribution of a media product. The number of people potentially involved in this process can be large, as they do not necessarily have to be part of a media company.
24 To limit the applicability of Art. 28 SCC, media-specific involvement in the production or distribution of the media product is required. Anyone who participates in a publication within the typical production and distribution chain may invoke the exclusive criminal liability of the author. In the case of involvement outside this chain, the media-specific connection is absent and thus the liability privilege does not apply. In such a case, criminal liability for the media offense in question is considered under the general rules on perpetration and participation, since invoking cascade liability under Art. 28 of the SCC is excluded.
25 It must be examined on a case-by-case basis what constitutes media-specific involvement. This raises the central question—the answer to which varies depending on the medium—of when a publication is considered complete, since at that point the possibility of further media-specific involvement ceases. As long as the publication process can still be halted and thus influence or control over the content can be exercised, the act is not complete. Only when the statement is visible and perceptible to third parties is the publication considered complete.
26 The difficulties in applying the criterion of media-specific participation are particularly evident in the case of social media. The Federal Supreme Court most recently addressed this issue in a decision concerning Facebook, without explicitly setting out the typical chain of production and dissemination.
27 While retweets (Platform X, formerly Twitter) are still considered part of the media-typical dissemination due to their technical design, a repost accompanied by one’s own comment on Facebook is regarded as an independent publication and thus no longer falls within the scope of Art. 28 of the SCC. In its reasoning, the Federal Supreme Court states that the original post is removed from the control of the original author by the shared and commented-on post. However, a repost accompanied by one’s own comment may, in exceptional cases, be considered media-specific participation if its content—similar to a quotation—engages with the original post and the intent of the repost is not merely to disseminate the criminal statement but to facilitate a platform-specific discussion of the post.
28 Other forms of dissemination, such as “liking,” are not covered by the media-specific production and dissemination chain. The setting of a hyperlink is only part of the typical production and dissemination chain in exceptional cases, as the person setting the link is rarely directly involved in the publication process. As a rule, a link merely refers to content that has already been published.
C. Exhaustion in Publication
29 The criminal act must be exhausted in the publication. The scope of application is therefore limited to media offenses. This refers to offenses whose completion is exhausted in the criminal publication. This requirement is fulfilled in particular in the case of activity offenses based on a criminal expression of thought. Offenses whose completion requires a result going beyond publication are therefore excluded.
30 Offenses involving the expression of thoughts satisfy the requirement that the criminal conduct be realized exclusively through publication.
The classic examples are defamation offenses under Art. 173 et seq. SCC. Art. 162 SCC (breach of trade or business secrets), Art. 259 SCC (public incitement to commit a crime or to engage in violence), Art. 276 SCC (incitement and instigation to breach military duties), Art. 293 SCC (disclosure of officially confidential proceedings), Art. 320 et seq. SCC (breach of official and professional secrets), and Art. 3 in conjunction with Art. 23 UWG (unfair competition).
31 Offenses whose commission requires active participation or whose outcome depends on a psychological effect on the victim are excluded from the scope of application of Art. 28 SCC, because the offense is not committed merely by the publication of the content. Art. 28 SCC therefore does not apply to Art. 146 SCC (fraud), Art. 156 SCC (extortion), Art. 180 SCC (threats), Art. 181 SCC (coercion), and Art. 258 SCC (intimidation of the public). The applicability of Art. 28 SCC to the provisions of the URG (copyright infringements) is controversial.
32 The Federal Supreme Court has further ruled that Art. 28 SCC applies only if its application does not contradict the purpose pursued by the legislature in sanctioning the underlying principal offense. This restriction is justified on the grounds that a criminal provision specifically aimed at preventing the publication of certain statements or depictions—and thus illegal content—would be undermined in its legislative purpose by a judgment against the responsible parties under Art. 28 SCC. Based on this prerequisite, the application of Art. 28 SCC is specifically excluded in relation to Art. 135 SCC (depictions of violence), Art. 197(4) SCC (hardcore pornography), and Art. 261bis(4) SCC (discrimination and incitement to hatred).
33 This restriction of the scope of application introduced by the Federal Supreme Court contrary to the wording is criticized in prevailing legal doctrine, as it largely undermines media criminal law. To ensure legal certainty, it is demanded, among other things, that the legislature enshrine an exhaustive list of media offenses in law.
D. On the Criminal Liability of the Author
34 If the requirements of Art. 28(1) SCC are met, only the author is liable—subject to para. 2 through 4. This follows from the fact that both control over the content and the decision-making authority regarding publication rest with the author, provided the publication did not occur without the author’s consent (see Art. 28(3) SCC).
35 The exclusive criminal liability of the author grants immunity to all persons, with the exception of the author, who have contributed to the media product in a media-specific capacity. They are subject to cascading liability and—contrary to the general doctrine of perpetration and participation—remain exempt from punishment or can only be held liable on a subsidiary basis.
36 An author is defined as the person who determines the content of the media product and gives it its external form. This requirement is also deemed fulfilled if the content is incorporated into a new document or published online as part of a website. In this sense, bloggers and authors of letters to the editor or columns may also be classified as authors. The status of author is also fulfilled by anyone who has the content written by a third party or presents themselves as the author and assumes responsibility.
37 The translator is not considered an author, as they do not independently shape the intellectual content, provided they make no changes to the content and the translation contains no errors that alter the meaning. Nor is someone who reposts an agency report with a source citation considered an author. Nor is the operator of an Internet discussion forum considered an author, since they do not shape the content themselves and do not contribute to the intellectual content of the posts.
38 If a criminal offense has been committed jointly by several authors, all authors may be held criminally liable as perpetrators in accordance with the principles of joint criminal liability.
39 Unlike criminal law, civil law contains no provision limiting liability exclusively to the author. The injured party therefore has recourse to civil law under Art. 28 para. 1 of the CC, according to which action may be taken against any person who contributed to the violation of personality rights.
III. Two-tiered subsidiary liability (para. 2)
40 Art. 28(2) of the SCC limits the circle of potentially liable parties to a tiered series of subsidiarily liable persons. Under Art. 322(1) SCC, media companies are obligated to disclose the identity of the persons liable under Art. 28(2) or (3) SCC. Some legal scholars conclude from this that only those who work within the media company in question can be considered subsidiarily liable. The Federal Supreme Court, however, extends this cascading liability to persons who do not belong to a media company.
41 Those with subsidiary liability are not punishable for the media offense itself, but—in accordance with the principle of fault—exclusively under Art. 322bis SCC for the genuine omission offense of intentionally or negligently failing to prevent a punishable publication. This procedure is initiated ex officio if the author cannot be identified or brought to trial in Switzerland.
42 The failure to prevent a publication is established if a publication was not stopped despite the existing possibility of doing so. However, there is no duty to intervene against publications that have already taken place, as the offense has already been completed at that point. Participation in the offense is therefore no longer possible, thereby also precluding the application of cascading liability under Art. 28 of the SCC.
43 If the media offense committed by the author is a complaint-based offense, subsidiary liability under Art. 322bis para. 3 SCC applies only if a criminal complaint was filed against the (un)known author within the prescribed time limit.
A. Level 1: Liability of the Responsible Editor
44 If the author cannot be identified or cannot be brought to trial in Switzerland, the responsible editor is subsidiarily liable in his or her place.
45 The responsible editor is the person who holds both responsibility for the content and actual decision-making authority over the content intended for publication. The publication must fall within their area of responsibility, whereby it is decisive that they have the actual ability to revise the content editorially. The subsidiary liability of the responsible editor extends exclusively to publications of the media company for which they work.
46 According to Art. 322 para. 2 of the SCC, newspapers and magazines must name a responsible editor in the imprint. However, this person need not necessarily be the same as the individual named in the imprint. Rather, what is decisive is who actually had the ability to modify the content relevant under criminal law or to refrain from publishing it.
B. Level 2: Liability of the Person Responsible for the Publication
1. Publication in General
47 If there is no responsible editor—which is particularly the case outside of media companies—the person responsible for the publication becomes liable under Art. 322bis of the SCC.
48 The classification of the responsible person requires substantive or economic involvement in the decision regarding publication. This also covers anyone who holds a media-specific duty of supervision and possesses the actual ability to prevent publication. Consequently, the person must be in a position to make editorial revisions to the content if necessary or, as the final decision-maker, to prevent publication.
2. Publication on the Internet
49 In the case of publication on the Internet, several actors are typically involved who may be considered responsible persons. This multiple involvement complicates the attribution of criminal liability and raises the question of whether Internet providers within the meaning of Art. 28 para. 2 SCC can also be held subsidiarily liable. Previous Federal Supreme Court case law leaves this question unanswered.
50 Unlike media companies that produce their own content, Internet providers primarily provide technical infrastructure for publications. They can be broadly distinguished as follows:
Content providers: offer their own content or information obtained from third parties.
Access providers: ensure access to the web and other Internet services.
Host providers: provide content providers with storage space and server infrastructure on their web servers on a contractual basis.
51 Whether these actors can be classified as persons responsible for publication is controversial and depends on their influence on the content as well as their power to prevent publication. Since providers are mostly legal entities, the further question arises as to which criteria should be used to identify the responsible natural person.
52 There is consensus regarding content providers. They create content and thus make editorial decisions. It makes no difference for liability whether a statement appears in traditional media or on a website. Content providers are therefore considered persons with subsidiary liability.
53 In contrast, complex questions arise regarding access and host providers. It is disputed whether these are or should be covered by cascading liability. If one assumes that Art. 322bis of the SCC links liability to affiliation with a media company, only persons who are active within such a company in a manner typical of the media are covered. This has the consequence that Internet providers generally do not fall within the scope of cascade liability, unless they simultaneously perform functions typical of the media. However, the legislative message and a report by the Federal Office of Justice have generally affirmed the classification of access and host providers as persons with subsidiary liability under para. 2 of Art. 28 of the SCC. Legal scholarship, on the other hand, largely rejects this and rightly considers access and host providers to be outside the scope of application.
54 Access providers provide only technical access to the Internet and enable users to access content that has already been published, without themselves exerting any influence over it.
55 The Federal Office of Justice justifies subsidiary liability on the grounds that access providers are an “indispensable link in the chain” for delivering content created by the author to the end user. At the same time, it limits liability: Access providers are only considered subsidiarily liable if they have acquired concrete and reliable knowledge of the existence of specific tortious content and have subsequently intentionally failed to remove it. However, this argument fails to recognize that, pursuant to Art. 322bis, para. 1 of the SCC, negligent omission is also punishable, which presupposes a breach of a duty of care. There is no obligation to conduct comprehensive (prior) monitoring or surveillance of content, and such an obligation should be rejected. In the absence of a specific legal basis, the Federal Office of Justice derives the required duty of care in a rather unconvincing manner from the general principle of risk, arguing that media pose a particular risk and that criminally relevant content would not reach users without the access provider. It is clear from the purported justification for limiting liability that access providers would, in nearly all cases, be deemed subsidiarily liable on the basis of negligent conduct. This must be rejected.
56 Subsidiary liability presupposes that realistic possibilities exist to control content and prevent its publication. However, this is precisely not the case with access providers. The provision of access serves the users alone and does not give rise to any liability for the published content. Access providers engage in neither editorial activities nor do they have active filtering mechanisms. Given the enormous volume of data, the possibility of control is effectively ruled out. They therefore lack the ability to monitor content or prevent its publication. Technically, they can only interrupt access. Furthermore, there is generally no direct or contractual relationship with the author. Access providers are therefore not to be classified as persons with subsidiary liability.
57 Host providers operate the technical infrastructure and regularly perform automated content uploads. In this process, data from the content provider is stored on the host provider’s server.
58 In the opinion of the Federal Office of Justice, host providers are functionally closest to the author in the transmission chain between author and user. Due to their contractual relationship with the author, they could reserve supervisory rights over the content they transmit. Consequently, they would be in a position to take the necessary blocking measures if required. Under these circumstances, it appears appropriate to classify hosting providers as persons with subsidiary liability.
59 Hosting providers are not involved in a supervisory capacity in the publication process and do not perform any editorial activities. Although they have the technical means to prevent publication through blocking measures, there is no monitoring obligation, as there is no duty to prevent future infringements. The activities of hosting providers are limited to the provision of storage space and the automated publication of information. No liability for the content arises from this. Hosting providers are therefore not to be classified as persons with subsidiary liability.
60 Due to existing ambiguities regarding the scope of application of Art. 28 of the SCC and Art. 322bis SCC, the Federal Council commissioned an expert commission in 2004, in response to a motion, to draft a revision bill. In the course of this work, a liability rule for providers was proposed that was clearly distinguished from the scope of application of Art. 28 SCC. However, Parliament chose not to introduce such a provision, as “appropriate solutions are possible on the basis of media criminal law (…) and the general principles regarding perpetration and participation (…)”.
61 Specific liability issues also arise in the operation of social media platforms. Platform operators design the communication environment and determine the possibilities for communication and the dissemination of content. The Federal Supreme Court has, however, rejected a general, permanent monitoring obligation for online discussion forums. Nevertheless, it is conceivable that platform operators may be obligated under certain circumstances to monitor and prevent unlawful content. This is particularly likely when a legal violation is foreseeable given the circumstances, such as in the case of repeated violations by a user. Whether and under what conditions social media platform operators can be held liable on a subsidiary basis thus remains open and must be assessed on a case-by-case basis depending on the context.
IV. Publication without the Author’s Consent (para. 3)
62 If a publication occurs without the author’s knowledge or against their will, the responsible editor and, on a subsidiary basis, the person responsible for the publication are liable to prosecution. The author, on the other hand, remains exempt from punishment, as he or she contributed to the commission of the offense without intent.
63 In contrast to Art. 28 para. 2 SCC, which derives criminal liability from an omission within the meaning of Art. 322bis SCC, the perpetrator is attributed active participation in the case of publication without the author’s consent. The editor and, subsidiarily, the person responsible are therefore considered perpetrators of the media offense, thereby precluding the application of Art. 322bis SCC. This interpretation, based on the wording of Art. 28 para. 3 SCC, is viewed by the majority of legal scholars as a legislative oversight.
A. Publication without Knowledge
64 Publication without the author’s knowledge occurs when the author lacks any knowledge of the publication in the relevant medium. Mere ignorance of individual details, however, is insufficient. The author’s lack of knowledge may also pertain to subsequent editorial interventions, provided these substantially alter the meaning of the content and do not merely involve abridgments or stylistic changes to the text.
B. Publication Against the Author’s Will
65 Publication against the author’s will is presumed to have occurred if the author has expressly or impliedly expressed his or her objection to the publication. Publication also occurs against the author’s will in cases where there are misunderstandings regarding agreements that have been made. If a draft is published before the author has been able to carry out the agreed-upon review or revision, this is to be classified as conduct contrary to the agreement and thus as publication against the author’s will or without the author’s knowledge.
V. Immunity from Prosecution for Truthful Reporting (para. 4)
A. Basis for Immunity
66 The justification of truthful reporting on public proceedings and official communications underscores the effort to protect media freedom under Art. 17 of the FC. In the interest of public opinion-forming and to promote democratic discussion, the media must have the authority to report on the activities of public authorities. This exemption from criminal liability fulfills a democratic protective function by ensuring the openness of the public flow of information and free discourse, thereby safeguarding public oversight of state power.
B. Definition of Public Authority
67 Public authorities include all bodies legally vested with official powers. The authorities covered are not limited to legislative bodies but extend to all bodies that exercise state functions with sovereign authority. These include, in particular, the constitutional bodies of the Confederation and the cantons, courts, municipal councils, municipal assemblies, Landsgemeinden, and synods. Foreign authorities are also covered.
68 Due to the link to official powers, private individuals acting in an official capacity without their own decision-making authority—such as persons bound by official secrecy or, at the federal level, all federal bodies subject to the Data Protection Act—are also to be classified as authorities. Examples include the SBB or the SUVA.
69 The application of non-punishable reporting to judicial authorities carries the risk that confidential information will become public. Since there is often no comprehensive duty of truth in the relevant proceedings and parties with different procedural roles are involved, there is a significant risk of false statements and the impairment of the rights of parties to the proceedings or third parties.
C. Truthful Reporting
70 Reporting is deemed to exist if it is recognizable to the public that the reproduced content either was uttered in a public hearing or originates from an official communication. Audio and video recordings also fall under the concept of reporting. However, immunity from criminal liability within the meaning of Art. 28 para. 4 SCC applies only if the recording is permissible under the law.
71 If the public hearing or official communication is not itself the subject of the media report, but is merely used as a supplementary argument in a report about a person or another matter, no reporting has taken place. This distinction forms the basis for the requirement of truthfulness.
72 A report is truthful provided that the statements contained therein are reproduced correctly either verbally or in substance. A substantive review of the accuracy of the content is not required.
73 A complete reproduction is not required for truthfulness. What is decisive is that the reporting conveys an accurate impression of the content to the reader. The omission of individual statements does not in itself constitute a violation of truthfulness. In particular, in reporting on public hearings, both abridged accounts and a focus on aspects other than the charges are common and do not in themselves constitute a lack of truthfulness. However, reporting on pending criminal proceedings must strictly take into account the presumption of innocence. It must be sufficiently clear that the facts presented have not yet been proven and must still be definitively established by the court. This can be expressed, for example, through phrases such as “according to the prosecution” or “as per the indictment.”
74 Truthful reporting also includes commentary and criticism. As an expression of opinion, criticism serves the purpose of social quality assurance and is therefore also covered by the privilege of immunity from prosecution. Since the truthfulness of commentary and value judgments cannot be proven, their admissibility is assessed based on whether they are grounded in a sufficient factual basis and appear reasonable in that context.
75 Only biased distortions that do not convey an overall picture corresponding to reality constitute unlawful reporting. The degree of care required for truthful reporting, as well as the scope of the journalistic presentation, depend on the specific characteristics of the respective medium and the expectations of the audience. Against this backdrop, even sensationalized presentations with eye-catching headlines and images may be permissible. It is impermissible, however, to present unspoken statements as alleged verbatim quotations using quotation marks. Excessive value judgments are impermissible, as they contradict the intent and purpose of Art. 28 para. 4 of the SCC, which aims to describe events that, in theory, any person in the courtroom could perceive with their “own eyes and ears” or read in official communications.
D. Public Proceedings
76The immunity from prosecution regarding the reporting of a proceeding is based on its public nature. It is therefore granted only if a proceeding is accessible to a potentially unlimited general public. This also includes meetings of public authorities, even if they are accessible only to a limited portion of the public, provided they are not subject to a duty of confidentiality. A hearing is also considered public even if individual persons are excluded from it for specific reasons. A public meeting that is generally open to all therefore does not lose its public character merely because a single person is subsequently removed.
77 Even in the absence of a general public, the privilege of truthful reporting remains in force provided that accredited media representatives are admitted to the proceedings pursuant to para. 70(3) of the CrimPC and no statutory reporting ban exists. Conversely, this implies that reporting on secret proceedings is not covered by immunity from prosecution (see Art. 293 SCC).
E. Official Communications
78 Communications encompass all oral and written forms of official communication, including official statements, speeches, and reports, as well as those via social media. However, only communications that are official are covered by the exemption from criminal liability.
79 The official nature of a communication is determined by the authorities’ consistent, non-arbitrary information practices when publishing official facts and by the definitions contained in information and public access laws. The central characteristic is therefore that a communication serves the fulfillment of a public duty incumbent upon the community. In particular, information regarding the private lives of public officials is thus excluded.
80Immunity from criminal liability applies exclusively when official communications are made accessible to a potentially unlimited general public, for example through the publication of reports, studies, or expert opinions ex officio. Oral statements at press conferences that are directed at an unlimited (media) audience and can be transmitted to the general public are also covered. The question of whether oral statements and interviews are covered is controversial in legal scholarship, as they are not necessarily addressed to the public.
81 Documents made available upon individual request are also considered official communications, provided that a legal obligation or the principle of equality before the law requires the authorities to grant access.
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Materials
Bericht der Expertenkommission «Netzwerkkriminalität», Eidg. Justiz- und Polizeidepartement, Juni 2003, abrufbar unter https://www.newsd.admin.ch/newsd/message/attachments/76014.pdf, besucht am 5.1.2026 (zit. Bericht Expertenkommission).
Bericht des Bundesrates, Netzwerkkriminalität, Strafrechtliche Verantwortung der Provider und Kompetenzen des Bundes bei der Verfolgung von Netzwerkdelikten, Februar 2008, abrufbar unter https://www.newsd.admin.ch/newsd/message/attachments/77468.pdf, besucht am 5.1.2026 (zit. Bericht Bundesrat).
Botschaft des Bundesrates an die Bundesversammlung zu einem Gesetzesentwurf enthaltend das schweizerische Strafgesetzbuch vom 23.7.1918, BBI 1918 IV 1, abrufbar unter https://www.fedlex.admin.ch/eli/fga/1918/4_1_1_1/de, besucht am 1.1.2026 (zit. Botschaft 1918).
Botschaft über die Änderung des Schweizerischen Strafgesetzbuches und des Militärstrafgesetzes (Medienstraf- und Verfahrensrecht vom 17.6.1996, BBI 1996 IV 525 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1996/4_525_533_449/de, besucht am 1.1.2026 (zit. Botschaft 1996)
Bundesamt für Justiz, Gutachten vom 24.12.1999, Art. 27 und 322bis StGB. Strafrechtliche Verantwortlichkeit der Internet-Access-Provider. JAAC 64.75, abrufbar unter https://entscheidsuche.ch/dok/CH_VB/CH_VB_003_JAAC-64-75--_1999-12-24.pdf, besucht am 2.1.2026 (zit. Bundesamt für Justiz).
Niggli Marcel Alexander/Riklin Franz/Stratenwerth Günter, Gutachten, Die strafrechtliche Verantwortlichkeit von Internet-Providern, erstellt im Auftrag des Verbandes Inside Telecom (VIT), 2000 (zit. Niggli/Riklin/Stratenwerth).
Richtlinie 2000/31/EG des Europäischen Parlaments und des Rates vom 8.6.2000 über bestimmte rechtliche Aspekte der Dienste der Informationsgesellschaft, insbesondere des elektronischen Geschäftsverkehrs, im Binnenmarkt («Richtlinie über den elektronischen Geschäftsverkehr»), abrufbar unter https://eur-lex.europa.eu/legal-content/DE/TXT/PDF/?uri=CELEX:32000L0031, besucht am 8.1.2026 (zit. E-Commerce Richtlinie).