Principle of Objectivity in a Documentary about a Whistleblower: Complaint by Affected Person against Regional Judge Dismissed, Programme Not Unlawful

Facts

The Swiss Broadcasting Corporation (SRG) broadcast on 4 December 2019, as part of the 'DOK' series, the approximately 50-minute documentary 'Der Preis der Aufrichtigkeit - Adam Quadronis Leben nach dem Baukartell' ('The Price of Sincerity - Adam Quadroni's Life after the Construction Cartel'). The film portrays Adam Quadroni, whose tips led to the exposure of the 'Bündner Baukartell' (Graubünden construction cartel), and depicts the personal and family consequences he had to bear as a whistleblower in the close local environment of the Lower Engadine.

Not Carl, who was not mentioned in the film, applied to the Ombudsman's office and then to the Independent Complaints Authority for Radio and Television (UBI). He complained that the programme had failed to mention or had misrepresented essential facts, in particular concerning the role of Regional Court President Orlando Zegg, against whom serious allegations had been made. On 28 August 2020 the UBI upheld the complaint by four votes to three, insofar as it was admissible. The minority considered the objected sequences, which made up only a few minutes, to be subordinate and without influence on the overall impression.

The SRG appealed the decision to the Federal Supreme Court, requesting its annulment and a finding that the requirements for a complaint by an affected person had not been met; in the alternative, that the principle of objectivity had not been violated. Not Carl had, in the SRG's view, not been affected by the programme more than the average viewer. He requested non-admission of the appeal or, alternatively, its dismissal. The UBI requested dismissal. A supplementary submission by the respondent dated 17 November 2021, with a decision of the Zurich Higher Court, was not considered as an inadmissible genuine novum (Art. 99 FSCA).

The disputed questions were (1) the standing of the respondent as an affected person under Art. 94 para. 1 RTVA and (2) whether the portrayal of Orlando Zegg in the film violated the broadcasting-law principle of objectivity (Art. 4 para. 2 RTVA).

Considerations

An appeal against UBI decisions on the content of editorial programmes is admissible under Art. 86 para. 1 let. c FSCA; the SRG, as broadcaster, has standing to appeal under Art. 89 para. 1 FSCA. The request that the complaint by the affected person was wrongly admitted is not an inadmissible novum (Art. 99 FSCA), as it arises as a preliminary question within the subject matter of the dispute. The Federal Supreme Court examines the procedural requirement of standing ex officio (Art. 106 para. 1 FSCA), even though the SRG did not dispute before the UBI that a popular complaint was involved.

Under Art. 94 para. 1 RTVA, a complaint by an affected person requires that the complainant took part in the complaint procedure and demonstrates a close connection to the subject of the broadcast. The decisive factor is the extent of the impact, not the interest in the topic. A close connection exists where the complainant was himself the subject of the programme, or where, through his activities, he stands in a special relationship to the content and is thereby distinguished from other programme consumers. Standing is to be affirmed with restraint, since otherwise the right of popular complaint under Art. 94 paras. 2 and 3 RTVA would be circumvented.

Applying these standards, the respondent's status as an affected person was doubtful. The interest in correcting the image of the Lower Engadine and the judiciary, and advocating for third parties, do not establish a sufficient closeness to the subject. The allegations were directed at the court president Orlando Zegg personally, not at the Regional Court as an institution. Research conversations and e-mail contact with the filmmaker are not sufficient on their own. However, the Federal Supreme Court left the question open, since the UBI would have reached the same decision even in a popular complaint procedure, and Art. 96 para. 1 RTVA allows timely complaints that do not meet all formal requirements to be dealt with where a public interest exists.

The principle of objectivity requires that editorial programmes reproduce facts and events accurately, that opinions are recognisable as such, and that the audience can form its own opinion. The duties of care increase with the sensitivity of the topic. Advocacy or investigative journalism is permissible, but requires critical distance and fair presentation of opposing viewpoints. In the case of serious allegations, the affected person should be confronted with the incriminating material. However, the principle does not require equal presentation of all positions; the decisive question is whether it remains recognisable that a statement is disputed. The understanding of the average television viewer is decisive.

The Federal Supreme Court found that the passages concerning Orlando Zegg conveyed to the average viewer the impression that the judge was biased and vindictive, had connections to the construction cartel, and took revenge on the whistleblower. The passage about the 'judge as entrepreneur' could, but need not, be related to Orlando Zegg, since it in fact concerned his predecessor. The connection was, however, reinforced by the reference to the 'influential man' and family ties to the construction cartel. The UBI's finding that this impression had arisen is not untenable. That the appellant did not intend to claim that support from construction cartel members had secured the election is legally irrelevant under programme law.

Orlando Zegg's refusal to cooperate must be taken…