An extract from The Technology, Media and Telecommunications Review, 11th Edition
Mediai Regulation of media distribution generally
Please note that there is no specific legal framework dealing with emerging platforms. The Federal Council aimed to tackle challenges posed by the distribution of content over internet platforms by creating a new Federal Act on Electronic Media, which would have included non-linear media offerings as possible public service. The proposal was contested, and the Federal Council stepped back. This does not mean that internet platforms are not subject to legal requirements. Certain internet platforms may qualify as telecommunications service. The RTVA's distribution rules also apply to certain content distributed via the internet (such as webcasting and streaming services). Furthermore, content distributed by internet platforms is subject to some scrutiny by criminal law and unfair competition law.
Transmission of information by means of telecommunications techniques, including the transmission of radio and television programme services, is regulated under the TCA.77 Content, on the other hand, is subject to regulation by the RTVA.
For broadcasting licences, OFCOM usually has to carry out an open invitation to tender.78 The invitation includes at least the extent of the coverage area, the means of broadcasting, a description of the performance mandate, the annual share of the fees (if applicable), the term of the licence, and the criteria for the award.79 To be awarded a broadcasting licence, the applicant must be able to fulfil its performance mandate, possess sound financial standing, be transparent regarding its owners, guarantee compliance with employment law regulations as well as the RTVA and the licence obligations. He also must separate editorial and economic activity and have registered offices in Switzerland.80 Licensed broadcasters have to pay an annual fee.81 OFCOM carries out supervision under the RTVA with regard to licensing and other regulatory requirements.
Any form of censorship is forbidden. No one, not even a regulatory body, may instruct a broadcaster or demand that it broadcasts specific presentations and information.82 This does not mean that broadcasters enjoy unlimited autonomy. Radio and television programmes must respect fundamental rights, in particular human dignity. They may not discriminate, contribute to racial hatred, endanger public morals or glorify or trivialise violence. Facts are to be presented fairly and must be clearly separated from opinions, and licensed programmes must appropriately represent the variety of events and opinions.83 By choosing an appropriate transmission time or other precautions, broadcaster must ensure that minors are not confronted with programmes that jeopardise their physical, mental, moral or social development.84 Detailed rules apply with regard to advertising and sponsorship transparency. In particular, advertising is to be separated from editorial programmes (separation rule).85
Complaints about the content of programmes may be submitted with the ICA.86 The ICA acts as an ex post regulator; there is no need or possibility for broadcasters to obtain its permission or opinion beforehand. It also has no competence to order provisional measures, whereas such measures are available in ordinary state courts.ii Internet-delivered video content
Since the Swiss legislature strives to keep laws technology-neutral, the RTVA's distribution rules also apply to content distributed via the internet (such as webcasting and streaming services). However, if contents are individually downloaded by the user and then consumed at will (genuine on-demand services, video on demand) this does not meet the RTVA's definition of programme. Hence, the offering of video on demand does not fall within the RTVA's scope of regulated activities.
Because ever more blockbuster series are distributed by streaming or Video on Demand services, the move to internet video distribution affects and disadvantages consumers who cannot afford internet access. On the same time, one must add that internet access is not a major issue in Switzerland. The major issue are rather the subscription fees for the services, if at all.
The fees charged by internet services providers are generally dependent on the down- and upload speed (the higher the speed, the higher the fees) and not on the content being transmitted. However, consumers are willing to pay for higher speed in order to facilitate the consumption of content via internet.