Facts
The Swiss Radio and Television Corporation SRG (appellant, broadcaster) broadcast an approximately 15-minute report on 30 April 2019 in the consumer programme 'Kassensturz' on SRF Television under the title 'Politiker prellen Konsumenten: Kniefall vor Versicherungslobby' (Politicians cheat consumers: grovelling before the insurance lobby). The occasion was the forthcoming deliberation of the partial revision of the Federal Act on Insurance Contracts (IPA) in the National Council.
The Swiss Insurance Association SIO (respondent) lodged a complaint with the Independent Complaints Authority for Radio and Television (UBI) on 16 September 2019. It alleged a breach of the principles of objectivity and diversity under Art. 4 para. 2 and para. 4 RTVA, respectively, on the grounds that the report was one-sided, contained false information and improperly interfered with a parliamentary business. It requested a finding of breach and appropriate measures under Art. 89 RTVA.
By decision of 31 January 2020, the UBI upheld the complaint by 5 votes to 4. It held that the principle of objectivity had been breached because certain aspects were not presented in accordance with the facts or in a differentiated manner, and the opposing view was not presented fairly; the public's opinion-forming had thereby been significantly impaired. The UBI specifically criticised: (1) the introduction misrepresented the applicable legal position, as unilateral contract amendments had already been permissible; (2) the statement that Art. 35 draft IPA contained what the insurers had wanted was misleading, as the SIO had not proposed any such provision; (3) the editorial team had not mentioned an amendment proposal by National Councillor Merlini; (4) the case example on Art. 45 draft IPA ('Fred falls down the stairs') was misleading, as primarily AIA/HIA were affected; (5) the SIO had not been granted a right to respond.
On 8 June 2020, the SRG lodged a public law appeal with the Federal Supreme Court, requesting that the UBI decision be set aside and that it be found that the report had not breached the programme law provisions. The UBI waived its right to comment; the SIO requested dismissal.
Considerations
The Federal Supreme Court has jurisdiction: UBI decisions on the content of editorial broadcasts may be challenged directly by public law appeal (Art. 86 para. 1 lit. c FSCA; Art. 99 para. 3 RTVA). The SRG, as broadcaster, was a party to the proceedings before the lower authority and is particularly affected (Art. 89 para. 1 FSCA). The appeal was filed within time and in the proper form. The Court examines federal law of its own motion (Art. 106 para. 1 FSCA); complaints of violation of fundamental rights are subject to the qualified duty to raise and substantiate them (Art. 106 para. 2 FSCA). The lower authority's findings of fact are binding in the absence of a complaint of arbitrariness (Art. 105 FSCA).
Legal framework: Programme freedom is protected by Art. 17 para. 1 and Art. 93 Cst. Editorial broadcasts with informational content must present facts objectively so that the public can form its own opinion (Art. 4 para. 2 RTVA). Objectivity does not require equal presentation of all viewpoints, but rather that it is recognisable that and to what extent a statement is disputed. Advocacy journalism is permissible provided transparency is maintained; however, it does not release one from critical distance and fair presentation of opposing views. The decisive question is whether the report as a whole is manipulative. The requirements increase with the sensitivity of the topic and the severity of the allegations. Not every imperfection violates the principle: errors in secondary points fall within editorial responsibility and are covered by programme autonomy.
Introduction and prior knowledge: The public is aware of the 'advocacy' style of Kassensturz. The introduction serves to arouse interest and cannot explain all legal exceptions; omitting the note that unilateral contract amendments were already possible under the applicable law falls within journalistic latitude. The overall impression is decisive: in the second part, National Councillor Markwalder correctly summarised the legal position, which was not lost in the overall context. No violation.
Role of the SIO: The report partly portrays the SIO negatively ('whisperer', logo 'swallow'), but the criticism is limited to its consultation response and is recognisable to the public as an exaggerated formulation. The consultation response did indeed reject a prohibition of unilateral contract amendments and proposed terms-amendment clauses; the disputed Art. 35 draft IPA essentially corresponds to these proposals. While mentioning other consultation participants would have been suitable to relativise the SIO's role, the focus is comprehensible. There is no misrepresentation, even though the SIO's director later supported the deletion.
Merlini amendment proposal: The omission is not objectionable. The report clearly informs that the FDP parliamentary group is seeking the deletion of Art. 35 draft IPA and that the fate of the bill is open. The principle does not require addressing all aspects connected with the topic (BGE 139 II…