Facts
The Swiss Broadcasting Corporation (SRG) as the organiser of the television programme Tagesschau broadcast on 26 October 2023 in its main edition a report entitled "FIFA Affair: Proceedings against Lauber and Infantino discontinued". The report lasted about two minutes and referred to the discontinuation of criminal proceedings against the former Federal Prosecutor Michael Lauber and the FIFA President Gianni Infantino by the extraordinary Federal Prosecutors. The report was based on the discontinuation order of the Federal Prosecutors dated 19 October 2023, which was made public on the same day via a press release.
In the report, the former public prosecutor and police commander Markus Mohler, the sports and political journalist of the Süddeutsche Zeitung Thomas Kistner, and Gianni Infantino were interviewed. The speaker of the report referred to the discontinuation order and emphasised that although terms such as "lack of transparency" and "secrecy" were used in it, the Federal Prosecutors spoke of "clear results" that spoke against an indictment. In addition, the first page of the discontinuation order with the names of the Federal Prosecutors was displayed for about three seconds.
In January 2024, the extraordinary Federal Prosecutors filed a complaint with the Independent Complaints Authority for Radio and Television (UBI) against the report. On 16 May 2024, the UBI upheld the complaint by a vote of four to three and found that the requirement of factual accuracy under Art. 4 para. 2 RTVA had been violated. The minority of UBI members who were outvoted expressed a dissenting opinion.
The SRG then filed a public-law appeal with the Federal Supreme Court and requested that the UBI decision be set aside and that it be determined that the report did not violate the requirement of factual accuracy. The respondents, the extraordinary Federal Prosecutors, requested that the appeal be dismissed. The UBI waived further comments and also requested that the appeal be dismissed.
Considerations
The Federal Supreme Court first examined the admissibility of the appeal. It found that decisions of the UBI on the content of editorial programmes may be challenged directly by way of a public-law appeal to the Federal Supreme Court (Art. 86 para. 1 lit. c FSCA). The SRG, as the organiser of the contested report, was entitled to file the appeal due to the interference with its programme autonomy (Art. 89 para. 1 FSCA). The other requirements for a decision on the merits were also met, so the Federal Supreme Court admitted the appeal.
On the respondents' right to appeal: The UBI had upheld the complaint of the Federal Prosecutors as a complaint by an affected party under Art. 94 para. 1 lit. b RTVA, since they had a close connection to the subject matter of the report due to the display of the discontinuation order with their names. The Federal Supreme Court confirmed this view. Although the display lasted only three seconds and the names were barely perceptible to the average audience, the image could be enlarged and paused on modern televisions or on the internet. In addition, the speaker made a direct reference between the Federal Prosecutors and the content of the order by stating that the special investigators (the Federal Prosecutors) spoke of clear results against an indictment. This established a close connection between the respondents and the subject matter of the report, so that the UBI was justified in admitting the complaint.
On the violation of the requirement of factual accuracy: The appellant argued that the UBI had interpreted the requirement of factual accuracy enshrined in Art. 4 para. 2 RTVA too strictly and thus violated federal law. The Federal Supreme Court examined whether the report met the requirements for a factual presentation. It emphasised that editorial programmes with informative content must present facts and events in such a way that the public can form its own opinion. Opinions and comments must be recognisable as such. In the case of controversial factual statements, broadcasters are obliged to report facts objectively and truthfully without manipulating the public. Manipulation occurs when incomplete or staged facts suggest to the public that the journalist's opinion is…