Extract taken from 'The Media and Entertainment Law Review - edition 1'
Free speech and media freedomi Protected forms of expression
Freedom of media guaranteeing the unhindered flow of news and the free exchange of opinion and expression form the basis of freedom of speech. Media freedom is considered a fundamental right as provided in the FC. However, even fundamental rights are subject to various restrictions, which are set out in various Swiss federal statutes:
- Freedom of speech and media freedom finds its limits in publications that, without just cause, contain untrue factual claims or libellous value judgements. These publications may violate the social integrity of the addressed person and trigger manifold claims, such as injunctive relief, damages and equity-based compensation. Publications infringing the economic reputation of a business and, therefore, interfering with fair competition law principles may violate the Federal Act against Unfair Competition of 19 December 1986 (UCA).
- Defamatory public statements violating the ethical integrity of a person may also constitute a criminal act under the Swiss Criminal Code of 21 December 1937 (SCC). Swiss criminal law provides for a multitude of provisions restricting free speech. One prominent example is the prohibition to publicly incite hatred or discrimination against a person or a group of persons on the grounds of race, ethnic origin or religion.
- Broadcasters must comply with certain minimum requirements for editorial and advertisement content based on statutory provisions in the RTVA; for instance, they must present facts in editorial programmes (i.e., news programmes) in a fair and well-balanced manner. Furthermore, editorial content and advertisement content must be clearly separated from each other and labelled as such. Finally, broadcasters are banned from advertising tobacco goods, alcoholic beverages, political parties, religious beliefs and institutions, and therapeutic products and medical treatments. In addition to these duties, broadcasters subject to a public licence (e.g., SRG SSR) must appropriately express the variety of events and opinions in the totality of their editorial programmes (public service).
Research activities of journalists editing news are protected by the fundamental right to freedom of media. The Swiss Federal Supreme Court (FSC) has confirmed, in principle, that journalists must be granted access not only to general public sources but also to sources that are not publicly available and that information gathering of journalists may only be limited if there is a legal basis to it (e.g., based on third-party rights that could be at stake).
As regards journalists’ access to documents of public agencies, the Swiss Freedom of Information Act of 17 December 2004 (FAP) provides that anyone must be granted access to documents of the Swiss Federal Administration. However, this right to access may be limited based on several grounds, such as the impairment of the privacy of individuals, the implementation of official measures, the protection of professional or trade secrets or the endangerment of security in Switzerland. However, the incitement to breach official secrecy and to bribe public officials is strictly prohibited.
Furthermore, when gathering news, journalists should refrain from any breach of privacy or integrity of personality under private or criminal law statutes. In particular, it is considered a criminal offence under Swiss law to listen in on or record private conversations by using a listening or recording device or to disclose information gathered in such a manner without the permission of the participants. Finally, unlawful entry of a building, apartment or demarcated proprietary area can be prosecuted.iii Freedom of access to government information
Court hearings and the delivery of judgments are generally public in Switzerland. However, they may be declared as secret where the personality rights of the involved participants, especially victims, are at stake. Furthermore, the pretrial phase is generally not considered public.
Legislative procedures are considered public in Switzerland. Parliamentary sittings can therefore be accessed by journalists. However, in some cases, the public can be excluded in order to protect personality rights or for security reasons. Furthermore, discussions in committees are confidential. However, the committees must inform the general public of the results of their deliberations.
Swiss law provides for the protection of sources. Persons who are professionally active in the publishing of information in the content section of periodically disseminated media may refuse to disclose the identity, author, content or sources of their information and are not liable to any criminal sanctions or subject to any procedural law enforcement powers. However, the protection of sources does not apply if a court holds that disclosure is required to save a person from immediate danger to life or limb or in the event of homicide or offences of a certain gravity that may not otherwise be resolved or where suspects may not otherwise be apprehended.v Private action against publication
Both natural and legal persons have legal remedies available against defamatory media coverage or media coverage infringing their privacy rights as provided for in the Swiss Civil Code of 10 December 1907 (CC). They may ask local courts or the courts at the seat of the defendant to prohibit a threatened infringement, to order that an existing infringement ceases or to make a declaration that an infringement is unlawful if it continues to have an offensive effect. In addition, such persons may claim damages and satisfaction and the handing over of profits.
No public cases are known of the Swiss federal governments or governmental agencies of Swiss cantons having officially intervened against Swiss media on publishing-specific content. ‘Censorship’ is institutionally considered unlawful under the FC and radio and television must be independent from the state.