Facts
The Swiss Broadcasting Corporation (SRG) aired a commercial for the company "Feldschlösschen" during the 1998 FIFA World Cup. The commercial showed football players drinking a non-alcoholic beer of the "Schlossgold" brand after a match. The Independent Complaints Authority for Radio and Television (UBI) upheld a public complaint against this commercial, as it was considered misleading and in violation of the ban on advertising for alcoholic beverages.
The SRG subsequently filed an administrative court appeal with the Federal Supreme Court, requesting the annulment of the UBI's decision. The Federal Supreme Court granted the appeal and overturned the UBI's decision.
Considerations
The Federal Supreme Court stated that the question of whether a product has been improperly advertised despite advertising bans or in circumvention of such bans, and whether the viewer has been misled, generally falls under the jurisdiction of the licensing authority and not the UBI. The monitoring of compliance with the legal financing regulations, which also include advertising bans, falls within the competence of the licensing authorities.
The Federal Supreme Court emphasized that the prohibition of misleading advertising under Art. 15 para. 1 lit. d RTVV is indeed of a broadcasting law nature and can lead to licensing law sanctions independent of…