Facts
Parties: A. (complainant) against Swiss Broadcasting Corporation (SRG)
Court: Federal Supreme Court, II. public law division
Date: November 29, 2022
Main issue: Deletion of a user comment on Instagram by the SRG in the other journalistic offering (üpA) and the question of the legal remedy.
Facts:
A. SRF News published on Instagram on August 10, 2021 the post "Germany abolishes free Corona tests". A. commented on the post with a statement that the SRF News editorial team considered incompatible with their "Netiquette" and therefore deleted.
A. turned to the Ombudsman's Office of SRG German-speaking Switzerland, which did not further process the complaint and referred it to the Federal Office of Communication (BAKOM). The Independent Complaints Authority for Radio and Television (UBI) also did not deal with the complaint.
A. applied to the Federal Supreme Court to set aside the decision of the UBI and to oblige the SRG to restore the deleted comment.
Considerations
The SRG is bound by fundamental rights in its other journalistic offering (üpA), even when it deletes user comments based on its "Netiquette". This follows from the close substantive connection between its editorial contribution and the user comments thereon.
Since the civil, criminal and supervisory legal remedy does not meet the requirements of Art. 29a Cst., the administrative legal remedy via the SRG Ombudsman's Office, which has a mediating function, must be opened to the Independent Complaints Authority for Radio and Television (UBI).
The provisions in the "Netiquette" are to be handled in individual cases analogously to the case law on the fundamental rights binding of the SRG in the advertising sector. The "Netiquette" provides that personal…