Media

Regulatory and institutional structure

Summarise the regulatory framework for the media sector in your jurisdiction.

In Switzerland, apart from the communications sector, regulation of the media sector is also dealt with at a federal level, the main sources of law being:

  • the Federal Act on Radio and Television (RTVA) of 24 March 2006, as last amended on 1 January 2021; and
  • the Federal Ordinance on Radio and Television (RTVO) of 9 March 2007, as last amended on 1 January 2021, and related decrees.

 

The RTVA regulates the broadcasting, processing, transmission and reception of radio and television programme services.

The broadcasting sector has three main authorities responsible for the granting of licences. The Federal Council is the licensing authority for the Swiss Broadcasting Company (SBC). Concerning other licences, the licensing competence has been delegated to the Federal Department of the Environment, Transport, Energy and Communications (DETEC). The Federal Office of Communications (OFCOM) puts the licences out for tender and consults interested groups.

OFCOM further fulfils all sovereign and regulatory tasks related to the telecommunications and broadcasting (radio and television) sectors. It fulfils an advisory and coordinating function for the public and policymakers. It also guarantees that basic services will be provided in all parts of the country and for all sections of the population.

The Federal Media Commission advises the Federal Council and the Federal Administration concerning media issues. It is operational since August 2013 and currently consists of 15 representatives from various areas of the Swiss media sector.

The RTVA provides for an Independent Complaints Authority for Radio and Television. This authority deals with complaints that relate to the editorial programme and rules on disputes on denied access to a programme.

Ownership restrictions

Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?

Certain foreign ownership restrictions may apply. In the absence of any international commitments to the contrary, licences for broadcasting may be refused to natural persons without Swiss citizenship, to companies with foreign control or Swiss companies with foreign participation unless reciprocal rights to Swiss citizens or Swiss companies are granted.

Also, the licence granted to broadcasters of radio and television programme services may only be transferred with prior approval of the licensing authority. The latter examines whether the licence requirements are also met after the transfer. The economic transfer of the licence (ie, the transfer of more than 20 per cent of the share capital of the voting rights or, where applicable, the participating capital of the licensee) is also deemed to constitute such a transfer.

Concerning cross-ownership, the RTVA provides that – except for the SBC – a media corporation may not receive more than two radio and two television licences. Also, the participation of the SBC in other companies that are broadcasting radio or television programmes requires the approval of DETEC.

Licensing requirements

What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?

Broadcasters of programme services are, in principle, required to obtain a licence. However, broadcasters that request neither a share of fees nor guaranteed wireless terrestrial distribution can operate their service without a licence upon a mere prior notification to OFCOM. Also, broadcasters of programme services of minor editorial importance (eg, programme services that can only be received by fewer than 1,000 devices at the same time) do not fall under the scope of the RTVA and, hence, need neither a licence nor a registration.

The Federal Council is the licensing authority for the SBC that is subject to a special licence with an extensive mandate.

Concerning the other licences, the licensing competence has been delegated to DETEC. A broadcaster of a radio programme service that has obtained a licence under the RTVA is not required to apply separately for a licence under the Federal Act on Telecommunications (TCA) for use of the frequency spectrum. Such licence is deemed to be granted at the same time in parallel. Cable television operators are under a duty to broadcast in the respective coverage area television programme services of broadcasters that have been granted a licence. Licences are awarded by way of public tender. To be awarded a licence, the applicant must:

  • be able to fulfil the mandate;
  • possess sound financial standing;
  • be transparent about its owners;
  • guarantee that it complies with the applicable labour laws and customary working conditions, the applicable law and, in particular, the obligations and conditions associated with the licence;
  • maintain a separation of editorial and economic activity; and
  • have residence or registered offices in Switzerland.

 

Except for the SBC, the number of licences a broadcaster and its group companies may acquire is limited to a maximum of two television and two radio licences. In the case of several applicants for one licence, the one that is best able to fulfil the performance mandate shall be preferred. In the case of equivalent candidates, the one that best promotes diversity of opinion and offerings shall be preferred. In practice, DETEC often deems independent applicants that do not belong to a media group that already possesses other broadcasting licences to be better able to fulfil this criterion.

The annual fee for a broadcasting licence amounts to 0.5 per cent of the gross advertising revenue that exceeds 500,000 Swiss francs. Further, administrative charges will incur concerning the radio and television licence as well as to the telecommunications licence. These charges are calculated based on time spent. A reduced hourly rate applies to the granting, amending or cancelling of a licence for the broadcasting of a radio or television programme service as well as for the radio communication licence.

Foreign programmes and local content requirements

Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?

Like all programmes, foreign-produced programmes must comply with the minimum requirements for programme service content. In particular, to respect the fundamental rights, they must respect human dignity and be neither discriminatory nor contribute to racial hatred, endanger public morals or glorify or trivialise violence.

Further, broadcasters of a national or regional-language programme service window in a foreign television programme service that broadcasts films may be obliged to spend at least 4 per cent of their gross revenue on the purchase, production or co-production of Swiss films or pay a corresponding support fee not exceeding 4 per cent if they meet certain requirements.

In addition, Broadcasters may be granted a licence for national and language region-specific programmes. These licences may contain obligations concerning the portion of own productions and Swiss productions, in particular, Swiss films.

Local and regional providers of radio and television programme services must primarily consider the particular characteristics of their service area. They must contribute to the forming of opinion on topics of local and regional social life and the promotion of cultural life in the service area. Therefore, the respective licences contain specific obligations regarding local and regional content. Traditional online as well as traditional mobile content providers are in principle not subject to this regime.

Advertising

How is broadcast media advertising regulated? Is online advertising subject to the same regulation?

Swiss law provides for both rules on advertising in general and specific rules for advertising in broadcast media.

The Federal Act Against Unfair Competition (UCA) of 19 December 1986, as last amended on 1 January 2021, contains several general provisions on advertising. It provides, in particular, that any advertisement that is deceptive or in any other way infringes the principle of good faith and affects the relationship between competitors or between suppliers and customers is deemed unfair and unlawful. Also, the advertisement industry has installed soft law rules and established the Commission on Integrity in Commercial Communication. Such commission is a respected monitoring organisation that handles complaints from both consumers and competitors. It bases its decision on its own guidelines.

In addition to these general regulations, broadcast media advertising (form and content) is subject to the specific sector regulation as provided in the RTVA and RTVO.

Regarding the form of advertising, it must be clearly separated from the editorial programmes and clearly identifiable as such. In particular, both the beginning and end of an advertising slot must be indicated by a clear visual or acoustic marker. An advertisement that lasts longer than a minute must be clearly identified as such for reasons of transparency.

While surreptitious advertising is always illegal, product placement may be allowed if it fits into the dramaturgy of a programme and is clearly declared as sponsorship.

The broadcasters’ regular editorial employees are prohibited from appearing in advertising programmes. Local and regional broadcasters with limited financial resources are exempt from this restriction.

Further, there are scheduling and airtime restrictions for radio and television advertising. Depending on the type of programme (eg, cinematographic film, documentaries, news programmes, programmes with religious content, series or children’s programmes), different scheduling restrictions apply. Stricter restrictions apply to the SBC. As regards advertising transmission time, advertising, in general, may not account for more than 20 per cent (ie, 12 minutes) of one hour’s transmission time, subject to exemptions for non-licensed radio programme services and non-licensed television programme services that cannot be received outside of Switzerland.

The RTVO contains provisions on the use of new forms of advertising such as split-screen, interactive and virtual advertising (ie, the insertion of advertisements into an existing image through post-production).

In terms of content, the RTVA prohibits advertising for certain groups of products and services on radio and television, including tobacco products, certain alcoholic beverages, therapeutic products and political parties. Advertising is also prohibited if it disparages religious or political beliefs, is misleading or unfair or encourages behaviour that is detrimental to health, the environment or personal safety. Less restrictive rules apply to private broadcasters, in particular, concerning commercial breaks and product placement.

There is no specific regulation for online advertising as traditional online content is, in principle, not covered by the RTVA. Therefore, subject to certain exceptions, online advertising is only subject to the general advertising rules of the UCA.

Must-carry obligations

Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?

Concerning must-carry obligations, the RTVA distinguishes between broadcasting distribution networks that transmit content via wireless terrestrial broadcasting and wire.

In the case of wireless terrestrial broadcasting, the programme services of the SBC and the programme services of broadcasters that hold a licence with a performance mandate are entitled to access the network. Broadcasters pay the owner of a radio communication licence a cost-based compensation for the broadcasting.

In the case of transmission by wire, in addition to the above-mentioned programme services, the Federal Council has defined the programme services of foreign broadcasters that are to be transmitted by wire because of their special contribution to education, cultural development or free formation of opinion. In addition, OFCOM may, at the request of a broadcaster and under certain conditions, require a telecommunications service provider for a certain period to provide broadcasting by wire of a programme service within a specific area. The RTVO provides for a maximum number of programme services to be broadcast free of charge by wire.

Regulation of new media content

Is new media content and its delivery regulated differently from traditional broadcast media? How?

No specific rules or regulations exist concerning the provision of traditional online content (websites, newsgroups and blogs, etc). However, general laws such as the UCA, the Federal Criminal Code and the laws that protect intellectual property rights, etc, apply. Online content that meets the legal definition of a programme service (ie, content that is delivered as a continuous sequence of broadcasts that are transmitted at certain times only and addressed to the general public such as Internet Protocol television and streaming media) is, in principle, covered by the RTVA, apart from offerings of minor editorial importance (ie, programme services that can only be received simultaneously by fewer than 1,000 devices) and on-demand content that is also excluded from the RTVA. Consequently, most of today’s online content is not regulated. Broadcasts that are subject to the RTVA, however, must abide by the same rules (eg, regarding advertisement) as broadcasts via traditional media. Although no licence is required, the broadcasters must inform OFCOM about their programme service.

Digital switchover

When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?

From 1 January 2015, must-carry obligations regarding analogue terrestrial television programme services were finally abolished and switched from analogue to digital television broadcasting. No specific timing is required by law for the switchover from analogue to digital broadcasting concerning the broadcasting of radio programme services. However, in spring 2013, the radio industry, together with OFCOM, set up the Digital Migration Working Group, which is made up of representatives of the industry and public authorities. Accordingly, it planned to gradually replace analogue FM reception with digital radio from 2020 onwards with completion by 2024 at the latest. Today, the SBC and most private radio stations broadcast their programme services via DAB+ in parallel with FM; some even broadcast exclusively in digital. To establish new broadcasting technologies and, in particular, to alleviate a possible financial burden from such a parallel setup, OFCOM may provide financial help to licensed broadcasters in the case of insufficient resources in the relevant area. The necessary funds are generated by licensing and consumer fees.

Digital formats

Does regulation restrict how broadcasters can use their spectrum?

In Switzerland, no specific rules for digital formats exist. Digital broadcasting is subject to the general rules of Swiss law. Digital formats that meet the legal definition of a programme service (ie, content that is delivered as a continuous sequence of broadcasts that are transmitted at certain times only and addressed to the general public) are, in principle, covered by the RTVA.

Media plurality

Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?

Except for the SBC, the number of licences a broadcaster and its group companies may acquire is limited to a maximum of two television and two radio licences.

Also, there are measures against media concentration once a licence has been granted. However, these measures are only applicable if an undertaking abuses its dominant position. In such cases, DETEC consults the Swiss Competition Commission (COMCO). If the report of COMCO ascertains that a dominant undertaking jeopardises diversity of opinion and offerings as a result of an abuse of its dominant position, DETEC may demand that the undertaking concerned:

  • ensures diversity by measures such as granting broadcasting time for third parties or cooperating with other participants in the market;
  • takes measures against corporate journalism, such as issuing editorial statutes to ensure editorial freedom; or
  • adapts its business and organisational structure (if the other measures are clearly insufficient).
Key trends and expected changes

Provide a summary of key emerging trends and hot topics in media regulation in your country.

For some time now, Swiss media companies have faced a challenging time with declining revenues. Among others, this development has mainly been driven by online media or digitalisation, respectively. The consequences are job cuts, the merging of editorial offices and a decline in media diversity, which is particularly evident on a regional level. The covid-19 pandemic aggravated this development. Recent concentrations in the media sector in Switzerland confirm a clear trend towards consolidation in this sector.

Due to this development and the special importance of the media for democracy, the Swiss parliament passed motions to provide emergency financial aid amounting to 57.5 million Swiss francs. The Federal Council adopted two corresponding emergency ordinances on 20 May 2020 with a supporting package for all media genres.

On one hand, private radio and television broadcasters were directly supported with 30 million Swiss francs from the radio and television levy. Aside from direct financial contributions, the Swiss Confederation also committed to cover the costs of the Keystone-SDA news agency for six months, which are charged to electronic media. A maximum of 10 million Swiss francs was made available for this purpose, which is also taken from the radio and television levy. In the print sector, on the other hand, an expansion of the existing indirect press subsidy has been implemented. Already subsidised subscribed daily and weekly newspapers of the regional and local press were delivered free of charge in the daily channel of the post office for six months from 1 June 2020. Some 12.5 million Swiss francs from the general state budget was earmarked for this measure. Further, from 1 June 2020, the Swiss Confederation temporarily contributed to the costs of daily delivery of subscribed daily and weekly newspapers with a total circulation of more than 40,000 copies per issue. These titles were not eligible for subsidies according to the initial regulation. They also benefited temporarily from a delivery discount in the amount of the current regular reduction of 27 centimes per copy. A maximum of 5 million Swiss francs was assigned to this measure.

The ordinances were initially limited until 30 November 2020. On 11 November 2020, however, the Federal Council decided to extend the transitional measures until 30 June 2021 in the print-media sector and until 31 December 2021 for the coverage of the Keystone-SDA news agency costs charged to the electronic media.

Law stated date

Correct on

Give the date on which the information above is accurate.

10 June 2020