1Freedom of expression and of information is guaranteed.
2Every person has the right freely to form, express, and impart their opinions.
3Every person has the right freely to receive information to gather it from generally accessible sources and to disseminate it.
Art. 16 BV — Freedom of opinion and information
#Overview
Article 16 of the Federal Constitution protects the free expression of opinion and access to information. This fundamental right is central to democracy and personal development.
What does the provision regulate? The provision guarantees three areas: First, every person may freely form, express and disseminate their opinion. Second, they may receive and obtain information from publicly accessible sources. Third, they may disseminate this information further. The fundamental right protects all types of expressions of opinion — from political criticism to art criticism. Even false or shocking statements are protected in principle.
Who is affected? All persons in Switzerland can invoke this fundamental right — Swiss citizens and foreigners, natural and legal persons. It is particularly important for journalists, politicians, demonstrators and all those who want to express themselves publicly. The state is also affected: it may only restrict freedom of opinion under strict conditions.
What are the legal consequences? The state must generally tolerate expressions of opinion and may not exercise censorship. In case of restrictions (for example demonstration bans), it must have a legal basis and observe proportionality. Persons can defend themselves in court if their freedom of opinion is violated. The courts must distinguish between protected opinion and punishable statements (such as defamation or racism).
Example: A citizen wants to demonstrate against the government. The city may not simply prohibit this. It needs serious reasons such as a concrete danger to public safety. Even if the citizen's opinion is unpopular or critical, it enjoys protection. It would be different if she were to incite violence or insult others.
Freedom of information means that authorities must make certain documents accessible. Private media can inspect administrative documents in order to inform the public. This contributes to democratic control.
Art. 16 FC — Freedom of Opinion and Information
#Doctrine
#1. Legislative History
N. 1 Art. 16 FC codifies freedom of opinion and information as unwritten constitutional law, which the Federal Supreme Court had already recognised under the former Federal Constitution of 1874. In its dispatch of 20 November 1996, the Federal Council explicitly stated that this guarantee was to be carried over to the constitutional level without altering its existing scope of protection (BBl 1997 I 157 f.). The fundamental right was available to all persons — natural and legal, Swiss and foreign alike.
N. 2 The dispatch adopted a four-paragraph structure, combining freedom of opinion, freedom of information, and freedom of the media in a single article (BBl 1997 I 563, 591). The original provision was Art. 14 of the 1995 preliminary draft (PD 95), which had no explicit counterpart in the former Federal Constitution. The explanatory report on PD 1995 addressed freedom of assembly separately under Art. 16 PD; the current paragraphs 1–3 have their origins in the parliamentary process, which distinguished freedom of opinion and information from freedom of the media (Art. 17 FC).
N. 3 In the National Council, the decisive controversy centred on the principle of transparency: National Councillor Jutzet (SP/FR) moved to include the right of access to official documents — subject to a reservation of confidentiality — directly in the catalogue of fundamental rights. He pointed out that «the confidentiality of administrative activity, while contested in Federal Supreme Court practice and in constitutional theory, was nonetheless established practice». National Councillor Vollmer (SP/BE) urgently requested approval; National Councillor Hubmann (SP/ZH) summarised that the committee had rejected the principle of transparency by 20 votes to 14 as going beyond mere updating. National Councillors Fritschi (FDP) and committee spokesperson Pelli pointed to the contentious political nature of the proposal. Federal Councillor Koller asked that the Jutzet motion be rejected and indicated that the principle of transparency would be taken up again in reform package B. The Jutzet minority motion was defeated; the right of access to official documents was not incorporated into Art. 16 FC and was subsequently regulated at the statutory level in the Freedom of Information Act (FOIA, SR 152.3).
N. 4 The final constitutional text was adopted by both chambers in the final vote on 18 December 1998 and entered into force with the revised Federal Constitution on 1 January 2000. During the parliamentary process, the original four-part structure was divided: freedom of the media remained a standalone provision in Art. 17 FC, while Art. 16 FC sets out general freedom of opinion and information in three paragraphs.
#2. Systematic Classification
N. 5 Art. 16 FC forms part of the catalogue of fundamental rights of the Federal Constitution (Arts. 7–36 FC) and is a classical defensive right (liberty right) against state interference. The provision is a dual fundamental right: para. 2 protects the active freedom of opinion (formation and expression of opinions), and para. 3 protects freedom of information (receiving and obtaining information). Together with → Art. 17 FC (freedom of the media) and → Art. 21 FC (freedom of artistic expression), both guarantees form the core of the constitutionally protected communication freedoms.
N. 6 Art. 16 FC functions as a subsidiary catch-all fundamental right within the communication freedoms: where a specific freedom guarantee applies — such as freedom of the media (Art. 17 FC), freedom of artistic expression (Art. 21 FC), or academic freedom (Art. 20 FC) — Art. 16 FC recedes (BGE 127 I 145 E. 4b). General freedom of opinion thus covers the area not addressed by any lex specialis.
N. 7 As a subjective defensive right, Art. 16 FC applies in the first instance against state interference. By virtue of → Art. 35 para. 2 FC, it also binds private entities bound by fundamental rights that perform public duties, such as the SBB in the area of station management (BGE 138 I 274 E. 2.2) or the SRG in the area of advertising (BGE 139 I 306 E. 3). Restrictions are governed by → Art. 36 FC (legal basis, public interest, proportionality, core content).
N. 8 At the level of international law, Art. 16 FC corresponds to Art. 10 ECHR, which protects freedom of expression, including the freedom to receive and impart information. The case law of the ECtHR, in particular concerning the chilling effect on the exercise of fundamental rights, feeds into the interpretation of Art. 16 FC (→ BGE 143 I 147 E. 3.3). Art. 19 of the UN Covenant II (SR 0.103.2) must also be taken into account.
#3. Elements of the Provision / Normative Content
3.1 Para. 1: General Guarantee
N. 9 Para. 1 contains the general fundamental rights guarantee («Freedom of opinion and information is guaranteed»). This programmatic opening formula summarises the object of protection and qualifies the freedom institutionally as a fundamental prerequisite for democratic life. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 453 emphasise that freedom of opinion and information are of constitutive importance for the democratic rule of law.
3.2 Para. 2: Freedom of Opinion
N. 10 The concept of opinion is broadly construed. Protected are value judgments and statements of fact, political expressions and artistic forms of expression, oral, written, pictorial, and any other form of communication of human thought (BGE 127 I 164 E. 3b). The content of the expression of opinion is in principle irrelevant: even provocative or shocking statements are entitled to constitutional protection (BGE 138 I 274 E. 2.2). Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 370 emphasise that it is precisely unpopular or minority viewpoints that are most in need of constitutional protection.
N. 11 The scope of protection encompasses three sub-elements: (1) freedom to form opinions (internal process of will formation, free from state influence), (2) freedom to express opinions (external communication), and (3) freedom to disseminate opinions (transmission to third parties). The prohibition of censorship is an inherent component of para. 2: preventive content-based controls of intended expressions of opinion are in principle impermissible (BGE 138 I 274 E. 2.2, BGE 138 I 274 E. 3.4). Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862 characterise the prohibition of censorship as the core of the guarantee of freedom of opinion.
N. 12 Demonstrations and rallies on public ground fall within the scope of protection of Art. 16 para. 2 FC as a collective exercise of freedom of opinion, insofar as they pursue an opinion-expressing purpose (BGE 127 I 164 E. 3b). They lend the fundamental right a character that goes beyond mere defensive rights: there is a conditional entitlement to obtain authorisation for the use of public ground for rallies with an appellative effect (BGE 143 I 147 E. 3.2). The entitlement to use public property within the ordinary scope of its designated purpose, by contrast, is unconditional (BGE 138 I 274 E. 2.2.2).
N. 13 The personal scope («every person») covers natural and legal persons, and both Swiss and foreign persons alike. Legal persons under private law may invoke Art. 16 FC provided they are not performing public duties, in which case they are bound by fundamental rights (→ Art. 35 para. 2 FC).
3.3 Para. 3: Freedom of Information
N. 14 Freedom of information under para. 3 protects the passive receipt of information as well as the active obtaining and dissemination of information from generally accessible sources. The central element of the provision is the general accessibility of the source. Whether a source is generally accessible is determined largely by how it has been configured by the constitutional and statutory legislator (BGE 127 I 145 E. 4c aa). Generally accessible sources include, in particular, public radio and television programmes, parliamentary proceedings, the commercial and tax registers, and in principle public court hearings.
N. 15 Freedom of information does not establish a right to obtain information from sources that are not generally accessible. It confers no right of access to official documents held by the administration; such a right requires a positive statutory provision (cf. the Federal Act on the Principle of Transparency in the Administration, FOIA; SR 152.3). Archived records subject to ongoing protection periods do not constitute generally accessible sources; freedom of information and academic freedom (→ Art. 20 FC) do not confer a general right to early access to such records (BGE 127 I 145 E. 4c cc). This delimitation corresponds to the deliberate decision by Parliament to exclude the principle of transparency from Art. 16 FC (→ N. 3 above).
N. 16 A journalist has no constitutionally direct right to physical access to a major event (e.g. WEF Davos) where such access is refused on substantial security grounds; however, a police refusal of access does engage the core of the fundamental right to freedom of information and must be justified under Art. 36 FC (BGE 130 I 369 E. 2).
#4. Legal Consequences
N. 17 Interferences with Art. 16 FC are to be assessed according to the general limitations on fundamental rights set out in → Art. 36 FC: they require a legal basis, must be justified by a public interest or the protection of the fundamental rights of third parties, must be proportionate (suitable, necessary, reasonable), and must not impair the core content.
N. 18 The core content (Art. 36 para. 4 FC) of freedom of opinion includes the absolute prohibition of prior censorship and the prohibition of banning expressions of opinion solely on account of their content without any concrete threat to public order interests. A blanket prohibition on certain subject matter (e.g. topics «sensitive in terms of foreign policy») violates the core content and is impermissible even without any balancing of interests (BGE 138 I 274 E. 3.4).
N. 19 Indirect impairments of freedom of opinion through financial or other sanctions may produce what is known as a «chilling effect»: those entitled to the fundamental right refrain from exercising it again. Such indirect interferences are likewise to be measured against Art. 36 FC and must be moderate in order to allow for the effective exercise of fundamental rights (BGE 143 I 147 E. 3.3; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 376 f.).
N. 20 In the context of the authorisation procedure for demonstrations, the authority is not merely bound by the prohibition of arbitrariness, but must also take account of the ideal content of the liberty rights. Whether the views represented appear valuable or important to the authority must not be decisive for the decision; the authority is obliged to adopt a neutral, objective stance (BGE 127 I 164 E. 3b; BGE 138 I 274 E. 2.2).
N. 21 In relation to freedom of opinion, various legal interests compete, notably criminal law protection of honour (Arts. 173 ff. SCC), the prohibition of racial discrimination (Art. 261bis SCC), and the rights of third parties. In the balancing process, freedom of opinion — particularly in political discourse — demands a restrained application of criminal law provisions; criticism of population groups that is substantively well-founded and not inappropriate in overall context does not fulfil the elements of Art. 261bis para. 4 SCC (BGE 131 IV 23 E. 3.1).
#5. Points of Controversy
N. 22 Scope of protection: statements of fact vs. value judgments. It is disputed whether freedom of opinion also protects false statements of fact. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 379 ff. affirm protection in principle, but point to the possibility of proportionate statutory restrictions (e.g. Art. 173 SCC). Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 456 emphasise that the scope of protection is initially to be understood broadly and that restrictions are to be examined at the level of limitations (Art. 36 FC). The Federal Supreme Court left this question open with respect to false statements of fact in connection with Art. 261bis SCC, but pointed to the particular importance of free political criticism (BGE 131 IV 23 E. 3.1).
N. 23 Principle of transparency as a component of freedom of information. A central point of controversy — explicitly contested in the parliamentary debate (→ N. 3) — concerns the question of whether the right of access to official documents is anchored in Art. 16 para. 3 FC as a manifestation of freedom of information. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 460 ff. and Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1875 ff. advocate a rights-friendly interpretation that attributes constitutional status to the principle of transparency. The Federal Supreme Court, by contrast, makes clear in BGE 127 I 145 E. 4c aa that Art. 16 para. 3 FC presupposes the general accessibility of the source and does not establish a right of access to administrative documents that are not generally accessible — a view that corresponds to the will of the historical legislator. This delimitation is not uncontested in the literature: Mahon, ZSR 118/1999 II pp. 261 ff. had already pointed out, prior to the total revision, the need for constitutionally secured access to information.
N. 24 Performance dimension and third-party effect. The extent of the positive duty to protect under Art. 16 FC is disputed. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 377 f. and Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 454 recognise a limited performance dimension: the state must actively ensure that public rallies can take place and is obliged to provide adequate police protection. The Federal Supreme Court confirmed this in BGE 127 I 164 E. 3b. What remains disputed is the extent to which the conditional entitlement to use public property and administrative assets for the exercise of fundamental rights reaches in individual cases; the Federal Supreme Court has confined it to existing infrastructure and denied any entitlement to the creation of new facilities (BGE 138 I 274 E. 2.2.2).
N. 25 «Chilling effect» in the context of cost imposition. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1564 f. advocate a broad application of the chilling effect to indirect impairments as well. The Federal Supreme Court recognised in BGE 143 I 147 E. 3.3 the «chilling effect» as an independent category of interference, but requires that financial demands be moderate in order to allow for the effective exercise of fundamental rights; it left open whether an insufficiently precise regulation, in itself, produces a disproportionate chilling effect (E. 11).
#6. Practical Notes
N. 26 Demarcation from Art. 17 FC (freedom of the media): Art. 16 FC applies as the general communication fundamental right. As soon as the matter concerns the production and dissemination of media products, editorial privilege, or radio and television, → Art. 17 FC takes primary application. Art. 16 FC then recedes as subsidiary, but may be drawn upon for the interpretation of Art. 17 FC.
N. 27 Demonstrations on public ground: Organisers have no unconditional right to hold a demonstration at a self-chosen location, time, and under their own conditions. However, the authority must weigh the opposing interests according to objective criteria, take account of the ideal content of the fundamental rights, and examine conditions as a milder alternative to prohibitions (BGE 127 I 164 E. 3c; BGE 143 I 147 E. 3.2). Applications must be submitted in good time.
N. 28 Freedom of information and access to official information: The constitutional right under Art. 16 para. 3 FC protects access to generally accessible sources; a right of access to official documents beyond this follows from the FOIA (Federal Act on the Principle of Transparency in the Administration, SR 152.3) or from cantonal transparency legislation. Cantonal legislation may grant more extensive rights, as the Federal Supreme Court confirmed in BGE 144 I 170 in relation to a cantonal act on access to official documents.
N. 29 Proportionality review under Art. 36 para. 3 FC: Content-based restrictions on freedom of opinion are subject to particularly strict proportionality requirements. In particular with regard to political expression, the following applies: even unpopular or shocking statements enjoy protection; criminal sanctions (e.g. under Art. 261bis SCC) are to be interpreted restrictively and must not lead to the intimidation of substantively justified political criticism (BGE 131 IV 23 E. 3.1). The «chilling effect» on legitimate expression of opinion must always be taken into account.
N. 30 Fundamental rights obligation of private entities performing public duties: Entities such as the SBB or the SRG are bound by Art. 16 FC in the area of performance of public duties pursuant to Art. 35 para. 2 FC. They may not arbitrarily block expressions of opinion on their premises and in their broadcasts on grounds of content, and must in particular observe the inherent prohibition of censorship (BGE 138 I 274 E. 3.4; BGE 139 I 306 E. 3).
#Case Law
#Fundamental Principles of Freedom of Expression
BGE 138 I 274 E. 2.2 of 3 July 2012
Prohibition of censorship for posters in public spaces
The Federal Supreme Court established fundamental principles regarding freedom of expression in the extraordinary use of public property.
«Hanging posters on foreign policy topics represents a form of expression that falls within the protective scope of freedom of expression under Art. 16 para. 2 Federal Constitution. [...] Even provocative or shocking statements deserve fundamental rights protection. [...] A general prohibition of such topics would not take into account the ideational function of freedom of expression and would amount to prohibited censorship.»
BGE 127 I 164 E. 3 of 1 January 2001
Basic features of freedom of demonstration and expression
Landmark decision on rallies in connection with the World Economic Forum Davos, which defined the fundamental principles of the relationship between freedom of expression and public order.
«The authority must therefore weigh the conflicting interests against each other according to objective criteria and thereby give adequate consideration to the legitimate need to be able to conduct uses with an appeal effect to the public. [...] Whether the views that are to be promoted through the expression of opinion appear more or less valuable or important to the competent authority cannot be decisive for the decision on the application.»
BGE 136 I 332 E. 3.1 of 31 August 2010
Freedom of expression of public employees
Fundamental decision on the freedom of expression of civil servants outside the employment relationship.
«The distribution of leaflets is a form of expression that falls within the protective scope of freedom of expression.»
#Freedom of Information under Art. 16 para. 3 Federal Constitution
BGE 144 I 170 E. 6-8 of 27 June 2018
Access to official documents
Landmark decision on the scope of freedom of information under cantonal access to information laws, which defined the boundaries between transparency and administrative burden.
«The cantonal constitutional law does not limit the information claim to publicly accessible files and the law also does not exclude administrative judicial files from the access claim. A denial of file access can therefore only be considered if such an extraordinary effort would have to be managed that the conduct of business of the authority would be significantly impaired or virtually paralysed.»
BGE 127 I 145 E. 4 of 1 January 2001
Access to archived criminal files
Fundamental decision on the limits of freedom of science and information regarding documents not generally accessible.
«Freedom of information and science do not grant a general claim to obtain information from sources not generally accessible (archived files during protection periods).»
#Media Freedom and Access to Broadcasting Time
BGE 139 I 306 E. 3-5 of 1 January 2013
Fundamental rights obligations of SRG in the advertising sector
Groundbreaking decision on the fundamental rights obligations of public media companies in refusing advertising time.
«In its private law conduct in the advertising sector, SRG is bound by fundamental rights. It must thereby give consideration in particular (also) to the ideational content of fundamental freedoms. The mere fear that controversial (ideational) advertising could be detrimental to its reputation does not constitute a sufficient interest to refuse the broadcasting of an advertising spot critical of it, as long as the client is not acting unlawfully.»
BGE 143 I 194 E. 3 of 1 January 2017
Media exclusion from court proceedings
Decision on weighing media freedom against other procedural interests in criminal proceedings.
«The rule-of-law and democratic significance of the principle of publicity of justice requires that exclusion of the public and media representatives in judicial criminal proceedings be permitted only very restrictively, namely in case of overriding opposing interests.»
#Limits of Freedom of Expression in Criminal Law
BGE 137 IV 313 E. 2-3 of 16 September 2011
Defamation and political expression
Fundamental decision on the distinction between permissible political criticism and punishable defamation.
«To impute to a person that they have sympathies for the Nazi regime is defamatory even for a politician.»
BGE 131 IV 23 E. 2-3 of 1 January 2004
Racial discrimination and freedom of expression
Landmark decision on weighing freedom of expression against protection from racial discrimination under Art. 261bis Criminal Code.
«As degradation or discrimination within the meaning of Art. 261bis para. 4 Criminal Code appear all behaviours through which members of a population group are denied or at least questioned equal worth as human beings or equal rights regarding human rights based on their race, ethnicity or religion.»
BGE 128 IV 201 E. 1 of 1 January 2002
Hard pornography and freedom of expression
Decision on the limits of freedom of expression in the distribution of pornographic content.
«The punishment for the distribution of pornographic magazines and video films that contain sexual acts with violence or with human excretions does not violate freedom of expression even when these products serve exclusively interested and initiated adults.»
#Freedom of Expression at Demonstrations and Rallies
BGE 143 I 147 E. 3 of 1 January 2017
Cost imposition for rallies
Important decision on the financial burden of expressions of opinion in public spaces.
«The imposition of costs constitutes an interference with fundamental rights. [...] A cost imposition that leads to having to forego conducting a rally because the financial means are not sufficient impairs freedom of expression and assembly in its core area.»
BGE 132 I 256 E. 3-4 of 1 August 2006
Rally on National Day
Decision on the refusal of a demonstration by extremist groups on 1 August in Brunnen.
«The authority must weigh the conflicting interests against each other according to objective criteria and thereby give adequate consideration to the legitimate need to be able to conduct uses with an appeal effect to the public.»
BGE 134 IV 216 E. 4-6 of 3 April 2008
Coercion in strike actions
Decision on the distinction between legitimate expression of opinion and punishable coercion in traffic blockades.
«Anyone who calls on demonstrators to group around a vehicle in order to thwart police intervention makes themselves guilty of incitement to hindering an official act if the police operation is actually hindered.»
#Special Areas of Application
BGE 147 I 372 E. 4-6 of 22 April 2021
DNA collection at peaceful demonstrations
Current decision on the proportionality of police measures in the exercise of fundamental rights.
«The investigative recording and the taking of DNA samples from persons who have merely participated in a peaceful rally without behaving criminally constitute a serious interference with several fundamental rights.»
BGE 130 I 369 E. 2 of 7 July 2004
Police denial of access for journalists
Decision on freedom of information and freedom of movement of media representatives at major events.
«The police hindrance of access to Davos on the occasion of the World Economic Forum 2001 affects the journalist concerned in personal freedom as well as in freedom of expression, information and press.»
BGE 149 I 248 E. 5-7 of 1 January 2023
Begging prohibition and freedom of expression
Most recent decision on the distinction between expression of opinion and other forms of expression.
«Begging falls within the protective scope of the fundamental right of personal freedom or the right to respect for private life. [...] Insofar as begging contains elements of communication or appeal to solidarity, it can also touch the protective scope of freedom of expression.»