Facts
On 25 April 2022, Radio SRF 1 broadcast at 12.15 p.m. in its first programme a speech by Federal Councillor Ueli Maurer on the upcoming federal referendum on the adoption of the EU Regulation establishing the European Border and Coast Guard Agency (the so-called Frontex proposal). The speech lasted about four minutes and was introduced by the presenter, who drew attention to the upcoming referendums. In his speech, Federal Councillor Maurer emphasised the importance of Switzerland’s participation in expanding Frontex for the country’s security, pointed out the consequences of rejecting the proposal (including exclusion from Schengen-Dublin, higher costs for the economy) and recommended that the proposal be approved. The referendum took place on 15 May 2022 and was approved by 71.5 % of the votes cast.
On 11 May 2022, complainant A filed a complaint with the Independent Complaints Authority for Radio and Television (UBI) against the broadcast of the speech. On 1 September 2022, the UBI unanimously upheld the complaint, finding that SRG had violated the broadcasting law principle of diversity (Art. 4 para. 4 RTVA). SRG had not given the referendum committee an equivalent opportunity to present its views, and the presenter had not referred to other programmes in which the opposing position had been expressed. The UBI considered this a violation of the principle of equal opportunities as an important journalistic duty of care in referendum-related contributions.
The Swiss Broadcasting Corporation (SRG) filed an appeal in public law matters with the Federal Supreme Court on 25 October 2022. It requested that the UBI’s decision be set aside and that it be ruled that the broadcast of the speech did not violate the principle of diversity. The Federal Supreme Court allowed the appeal in its judgment of 28 August 2024.
Considerations
The Federal Supreme Court first examined whether the broadcast of the Federal Council address was subject to broadcasting law assessment at all. It found that SRG had voluntarily broadcast the address and was therefore responsible for the programme under broadcasting law. The broadcast was thus subject to the broadcasting law requirements, in particular the principle of diversity under Art. 4 para. 4 RTVA. The UBI had considered the broadcast a violation of the principle of diversity because SRG had not granted the referendum committee equivalent airtime and had not referred to other programmes in which the opposing position had been presented.
SRG argued that the principle of diversity had to be interpreted in conformity with the Constitution under Art. 34 para. 2 Cst. Federal Council addresses were part of the Federal Council’s information obligations and served to fulfil constitutional duties. SRG could therefore not be held responsible for the balanced content of the address, as it had no influence over its content. Moreover, the broadcasting of Federal Council addresses was a long-standing practice that was democratically legitimate. SRG claimed that the UBI’s decision interfered with its programme autonomy and thus violated Art. 17 para. 1 and Art. 93 para. 3 Cst.
The Federal Supreme Court emphasised that while SRG’s programme autonomy was restricted by the principle of diversity, it was not absolute. Interference with programme autonomy was only permissible if the fundamental principles of pluralistic opinion representation were violated to an extent that constituted a breach of the programme providers’ duty of care. However, in the case of Federal Council addresses, their special nature had to be taken into account:…