1Freedom of the press, radio and television and of other forms of dissemination of features and information by means of public telecommunications is guaranteed.
2Censorship is prohibited.
3The protection of sources is guaranteed.
Overview
Media freedom under Art. 17 FC protects all media in the dissemination of information and opinions. The fundamental right encompasses press, radio, television and modern online media such as blogs or YouTube channels. The entire media chain is protected: from information gathering through editorial processing to publication.
Article 17 FC contains three main guarantees: First, paragraph 1 ensures general media freedom. This means: The state may not interfere with media activity in principle. Second, paragraph 2 prohibits any censorship. Authorities may not control or prohibit media content before publication. Third, paragraph 3 protects editorial secrecy. Journalists do not have to reveal their sources.
Media freedom belongs to everyone who publicly disseminates information. These are not only professional journalists, but also private individuals with a blog or YouTube channel. What matters is that the contributions are directed at the public and not just at a private circle.
Practical example: A journalist wants to report on abuses in a hospital. She may freely research, conduct interviews and publish. The hospital management cannot prohibit publication (prohibition of censorship). If the journalist has received confidential information from whistleblowers, she does not have to reveal their names (editorial secrecy). However, media professionals must also comply with the law: defamation, violation of honour or breaches of data protection law remain punishable.
The limits of media freedom arise from Art. 36 FC. Interference is only permissible if it is legally provided for, justified by a public interest and proportionate. The Federal Supreme Court strictly examines restrictions on media freedom. For court reporting, the following applies: exclusion of media is only permissible in cases of «overriding conflicting interests».
It is disputed in legal doctrine how far the prohibition of censorship extends. While some authors consider only systematic prior censorship to be prohibited, others regard individual publication bans as impermissible censorship. There is also discussion about whether media as the «fourth estate» enjoy special constitutional privileges or whether they are primarily part of civil society.
Digitalisation considerably extends the scope of application of Art. 17 FC. Social media, podcasts and online platforms fall under media freedom if they serve public opinion formation. Private chat groups, however, are not protected.
Art. 17 FC — Freedom of the Media
#Doctrine
#1. Legislative History
N. 1 Art. 17 FC codifies the freedom of the press, which had been recognised as unwritten constitutional law until 1999. The old Federal Constitution of 1874 contained no explicit guarantee of press freedom; the Federal Supreme Court derived it from Art. 55 of the former Federal Constitution (press freedom as a cantonal competence) and from the unwritten fundamental right of freedom of expression. The preliminary draft of 1995 (PD 95) regulated freedom of the press, radio and television in a single article together with freedom of opinion, and provided only for a prohibition of prior censorship; the editorial privilege was not yet discussed as a constitutional guarantee but merely as a legislative option (Explanatory Report PD 1995, p. 199 f.).
N. 2 In the preliminary draft of 1996 (PD 96), freedom of opinion and freedom of the media were consolidated in Art. 14. The Federal Council's dispatch of 20 November 1996 (BBl 1997 I 157 ff.) proposed to separate freedom of the media from freedom of opinion and to enshrine it in a standalone article. The Federal Council justified this on the basis of the institutional role of the media in a democratic state and the necessity of explicitly protecting the editorial privilege as a constitutive element of freedom of the media (BBl 1997 I 158 f.). The prohibition of censorship was intended — departing from PD 95 — to cover not only prior censorship but any form of state content control (BBl 1997 I 159 f.). Films were deliberately excluded from the enumeration; likewise, a press article conferring federal competence for press subsidies was dispensed with (BBl 1997 I 160 f.; Explanatory Report PD 1995, p. 200).
N. 3 In the parliamentary proceedings, the entrenchment of the editorial privilege was particularly contentious. In the Council of States, rapporteur Inderkum (C, UR) moved to regulate freedom of the media in a separate Art. 14a but to relegate the editorial privilege to the statutory level. In the National Council, Gentil (S, JU) defended the Federal Council's version with a full constitutional guarantee of the editorial privilege: «La démocratie ne sera que renforcée par l'existence d'une presse libre et indépendante.» Federal Councillor Leuenberger supported the two-part structure but considered the Council of States' original decision to relegate the editorial privilege to the statutory level too restrictive. In the National Council, Member Jutzet (SP, FR) warned: «Das Redaktionsgeheimnis in das Gesetz zu verbannen heisst letztlich, es als bestehendes Recht zu verneinen, es jedenfalls zu relativieren und ihm den Grundrechtscharakter zu nehmen.» Member Vollmer (SP, BE) referred to the Federal Supreme Court's recognition of the editorial privilege as an unwritten constitutional right.
N. 4 The decisive factor in favour of the constitutional entrenchment of the editorial privilege was the ECtHR judgment Goodwin v. United Kingdom of 27 March 1996, which confirmed source protection as the core content of freedom of the press under Art. 10 ECHR. Federal Councillor Koller stated in the Council of States during the conciliation procedure: «Nach dem Entscheid Goodwin des Europäischen Gerichtshofes für Menschenrechte und nach zwei neueren Entscheiden des Bundesgerichtes vom 4. November 1997 [...] wäre es nicht angegangen, das Redaktionsgeheimnis einfach in die Disposition des Gesetzgebers zu stellen.» Rapporteur Inderkum then moved to agree to the National Council's decision: «Das Redaktionsgeheimnis ist gewährleistet.» Both chambers adopted the text on 18 December 1998; the popular vote of 18 April 1999 confirmed it.
#2. Systematic Classification
N. 5 Art. 17 FC is a fundamental right within the meaning of Arts. 7–34 FC and, pursuant to Art. 35 FC, binds the state in the first instance. The provision contains three differently structured guarantees: para. 1 a positive guarantee of freedom (freedom of the media in the narrow sense), para. 2 an absolute prohibition (prohibition of censorship), and para. 3 an institutional guarantee (editorial privilege). Freedom of the media is systematically a special form of freedom of opinion and information enshrined in → Art. 16 FC; it is consistently regarded by the Federal Supreme Court as a «central manifestation of the general fundamental right of freedom of expression» (BGE 137 I 8 E. 2.5). Restrictions are governed by the conditions of → Art. 36 FC; the core content (Art. 36 para. 4 FC) is absolutely protected.
N. 6 The provision is in close interaction with other fundamental rights: ↔ Art. 16 FC (freedom of opinion and information), ↔ Art. 26 FC (guarantee of property, relevant for media companies), ↔ Art. 27 FC (economic freedom), ↔ Art. 30 para. 3 FC (public hearings). For radio and television, Art. 93 FC constitutes the specific competence and programming freedom provision; Art. 17 para. 1 FC and Art. 93 para. 3 FC complement each other in this regard. At the statutory level, Art. 172 CrimPC and Art. 28a SCC (source protection) as well as the RTVA give concrete expression to the constitutional framework. At the international law level, → Art. 10 ECHR guarantees freedom of the media without explicitly naming it; the ECtHR treats it as a component of freedom of expression.
#3. Elements of the Offence / Normative Content
3.1 Scope of Protection (Art. 17 para. 1 FC)
N. 7 The personal scope of protection covers first and foremost media professionals (journalists) and media companies of all kinds — press publishers, radio and television broadcasters, and operators of online platforms engaged in journalistic activities. Private individuals who do not engage in media activities cannot invoke Art. 17 FC, but may rely on → Art. 16 FC (BGE 137 I 8 E. 2.7). Legal persons are entitled to protection to the extent that the nature of the fundamental right permits (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 438 f.).
N. 8 The material scope of protection of para. 1 protects the «freedom of the press and of radio and television and of other forms of public dissemination of broadcasts and information by means of telecommunications». The wording «other forms» was deliberately chosen in the parliamentary proceedings as technologically neutral in order to include new forms of communication (National Councillor Leuba, AB 1998 NR; National Councillor Stump, AB 1998 NR). Online media, blogs of a journalistic character, and other internet publications are thus covered. The decisive criterion is «public dissemination by means of telecommunications»; purely private communication does not fall within the scope of Art. 17 FC.
N. 9 Substantively, Art. 17 para. 1 FC protects the entirety of journalistic activity as a unity: the gathering of information (research), editorial processing, and dissemination. Also protected is the free choice of journalistic form of presentation (reportage, interview, background report) and of technical means (BGE 137 I 8 E. 2.3.2; Zeller, Öffentliches Medienrecht, 2004, p. 108). The value of a publication — whether it serves serious information interests or entertainment — is irrelevant for its inclusion within the scope of protection; it becomes relevant only in the balancing of interests under Art. 36 FC (BGE 137 I 8 E. 2.5).
N. 10 Freedom of the media protects primarily as a defensive right against state interference. In principle, it does not establish positive claims to benefits from the state, and in particular no general right of access to information sources or state institutions not generally accessible (BGE 136 I 167 E. 2.2; BGE 127 I 145 E. 4c). However, state restrictions at the stage of information gathering — even in relation to sources not generally accessible — require justification and must satisfy the conditions of Art. 36 FC (BGE 137 I 8 E. 2.5; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 438 ff.).
3.2 Prohibition of Censorship (Art. 17 para. 2 FC)
N. 11 The prohibition of censorship is framed in absolute terms and admits no exceptions. It covers both prior censorship (state content control before publication) and subsequent censorship (subsequent prohibition of already disseminated content). A criminal court order prohibiting the publication of certain information about an accused person constitutes an impermissible censorship measure, provided there is no sufficient legal basis (BGE 141 I 211 E. 3.3–3.5). The prohibition of censorship does not preclude civil law (→ Arts. 28 ff. CC) or criminal liability being invoked after publication; such subsequent sanctions do not constitute censorship in the constitutional sense (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 562).
3.3 Editorial Privilege (Art. 17 para. 3 FC)
N. 12 The editorial privilege protects media professionals from being required to disclose the identity of informants and the content and sources of their information. It is the «fundamental precondition and cornerstone of freedom of the press» (BGE 132 I 181 E. 2.1) and serves indirectly the watchdog function of the media in a democratic society: without source protection, informants would no longer pass information to media professionals, which impedes the free flow of news.
N. 13 The constitutional guarantee is given concrete expression at the statutory level by Art. 172 CrimPC (formerly Art. 27bis SCC), which provides a right to refuse to testify for media professionals engaged in a professional capacity and their assistants. Source protection applies to persons who «are professionally engaged in the publication of information in the editorial section of a periodically published medium». The Federal Supreme Court interpreted the concept of information broadly: entertainment content and blog comments may also fall within source protection, provided they do not serve exclusively entertainment purposes without any informational function (BGE 136 IV 145 E. 3.5–3.8). The prohibition on seizure under Art. 264 para. 1 lit. c CrimPC furthermore covers not only documents held by the media professional but also those held by the accused or by third parties (BGE 140 IV 108).
N. 14 The editorial privilege is not without limits. Restrictions are permissible under Art. 36 FC and Art. 10 para. 2 ECHR if they are based on a legal basis, serve the public interest, and are proportionate. According to the Federal Supreme Court and the ECtHR, a breach of the privilege requires «exceptional circumstances» (BGE 132 I 181 E. 2.1; ECtHR, Goodwin v. United Kingdom, Reports CourEDH 1996-II, para. 39 f.). Art. 172 para. 2 CrimPC sets out an exhaustive catalogue of serious offences in respect of which source protection may be overridden. Even where a catalogued offence is present, Art. 36 FC requires a case-specific proportionality assessment: the testimony must be «absolutely indispensable» for the investigation of the offence (BGE 132 I 181 E. 4.2).
#4. Legal Consequences
N. 15 Interferences with freedom of the media must satisfy the cumulative conditions of → Art. 36 FC: legal basis, public interest or protection of the fundamental rights of third parties, proportionality (suitability, necessity, reasonableness), and respect for the core content. Serious interferences — in particular publication bans, complete exclusion of media access at court hearings — require an explicit basis in formal legislation (BGE 141 I 211 E. 3.2; BGE 143 I 194 E. 3.2). The Federal Supreme Court examines, in cases of restrictions on fundamental rights, whether the interference is minor or serious; a serious interference exists in particular where media professionals are placed in a worse position than the general court audience (BGE 141 I 211 E. 3.3.3).
N. 16 Freedom of the media may be restricted by conflicting fundamental rights of third parties — in particular protection of privacy (→ Art. 13 FC, → Art. 28 CC), protection of private life, and physical integrity. In relation to public figures («relative persons of contemporary history»), the media enjoy wider reporting possibilities (BGE 141 I 211 E. 3.3.2). Any form of state prior censorship remains absolutely impermissible (Art. 17 para. 2 FC). Freedom of the media does not per se justify unlawful methods of gathering information, such as incitement to breach official secrecy or unlawful entry (BGE 127 IV 122; BGE 127 IV 166).
#5. Contested Issues
N. 17 Relationship between Art. 16 and Art. 17 FC: It is disputed whether Art. 17 FC establishes an independent, extended scope of protection as against Art. 16 FC — in particular with regard to access to information from sources not generally accessible. The Federal Supreme Court expressly left the question open in BGE 137 I 8 E. 2.7, finding that the balancing of interests under Art. 36 FC «remains the same, regardless of whether it is carried out under the heading of freedom of information or freedom of the media». Burkert (in: Die schweizerische Bundesverfassung, Kommentar, 2nd ed. 2008, N. 18 ad Art. 17 FC) views freedom of the media as a purely defensive right without an independent claim to benefits. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 523, 537 f.) advocate an extended scope of protection for freedom of information that includes state transparency, so that democratic oversight does not become illusory. Zeller (Öffentliches Medienrecht, 2004, p. 108) emphasises editorial discretion in the choice of journalistic form of presentation as an independent element of Art. 17 FC.
N. 18 Scope of the prohibition of censorship: It is disputed whether the absolute prohibition of censorship in Art. 17 para. 2 FC also covers temporally limited interim injunctions in civil proceedings (→ Art. 261 CPC) that temporarily prohibit the publication of certain content as a «provisional measure». Häfelin/Haller/Keller/Thurnherr (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 562) subsume such measures in principle under the prohibition of censorship insofar as they target the content of future publications. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862) draw a distinction: measures that briefly block an already prepared publication are equivalent to prior censorship and are unconstitutional; subsequent prohibitions of an already disseminated communication, by contrast, are to be treated as interferences with general freedom of the media and assessed under Art. 36 FC.
N. 19 Personal scope of the editorial privilege in the digital sphere: The extension of source protection to bloggers and online commentators is controversial in both academic writing and case law. The Federal Supreme Court held in BGE 136 IV 145 E. 3.3–3.8 that blogs on the website of a media company qualify as periodically published media and that even comments by private individuals may fall within the source protection of the media company if they appear in its editorial section. Werly (La protection du secret rédactionnel, 2005, p. 238 f.) and Zeller (BSK StGB I, 2nd ed. 2007, N. 21 ad Art. 28a SCC) criticise the fact that the boundary between information and entertainment remains doctrinally incoherent and creates legal uncertainty. Trechsel/Noll (Schweizerisches Strafrecht, AT I, 6th ed. 2004, p. 240) view the catalogue of exceptions in Art. 172 para. 2 CrimPC as an attempt to create legal certainty that has not fully succeeded in systematic terms.
#6. Practical Notes
N. 20 Pleading an interference: Anyone asserting as a media professional a violation of Art. 17 FC must first demonstrate the scope of protection (journalistic activity) and then show that the state act restricts the freedom to gather, process, or disseminate information. The Federal Supreme Court then examines the conditions of Art. 36 FC. For serious interferences (in particular publication bans, complete exclusion of media access), the requirement of an explicit basis in formal legislation applies; the absence of such a basis is sufficient in itself to render the interference impermissible (BGE 141 I 211 E. 3.5).
N. 21 Source protection in practice: Media professionals may refuse to testify about sources even where a catalogued exception is formally satisfied (Art. 172 para. 2 CrimPC) if proportionality is not observed in the individual case. The decisive question is whether the testimony is suitable and necessary for the investigation of the offence and reasonable in comparison to source protection (BGE 132 I 181 E. 4.1–4.5). The mere possibility that a catalogued offence exists does not suffice; a pressing suspicion of the offence is required (Zeller, BSK StGB I, 2nd ed. 2007, N. 28 ad Art. 28a SCC).
N. 22 Court reporting: Accredited court reporters enjoy a privileged position as against the general court audience; measures that place them in a worse position than the rest of the audience are to be classified as a serious interference (BGE 141 I 211 E. 3.3.3). The exclusion of the media from court hearings is permissible under BGE 143 I 194 E. 3.1 only where overriding countervailing interests exist and limited to the relevant procedural sections. The relationship between the principle of public hearings (→ Art. 30 para. 3 FC), freedom of the media, and protection of privacy always requires a careful case-by-case balancing, in which the protection of children and victims may carry particular weight.
N. 23 Conformity with the ECHR: Art. 10 ECHR protects freedom of the media as part of freedom of expression and must be considered alongside every restriction of Art. 17 FC. The ECtHR developed source protection as the core content of freedom of the press in Goodwin v. United Kingdom (Reports CourEDH 1996-II) and requires a case-specific proportionality assessment even in relation to catalogued offences. Swiss courts have integrated this case law into Art. 172 CrimPC and the practice on Art. 17 para. 3 FC (BGE 132 I 181 E. 2.1; BGE 136 IV 145 E. 3.1). Divergences between the Federal Supreme Court and the ECtHR exist notably with regard to the scope of positive rights of access: the ECtHR tends to recognise under Art. 10 ECHR more extensive positive obligations on the state to promote access to information than the Federal Supreme Court has hitherto derived from Art. 17 FC.
Art. 17 BV
#Case Law
#Foundations of Media Freedom
BGE 137 I 8 of 23 December 2010 Film recordings in a penal institution fall within the scope of protection of media freedom, regardless of the specific content. Media freedom protects journalistic activity as a whole, including the gathering and dissemination of information.
«The conduct of a television interview in a penal institution falls within the scope of protection of media freedom, regardless of the specific content of the contribution.»
BGE 130 I 369 of 7 July 2004 Police prevention of access to Davos on the occasion of the World Economic Forum affects a journalist's personal freedom as well as freedom of opinion, information and the press. Freedom of information also includes the right to unhindered gathering of information.
«Police prevention of access to Davos on the occasion of the World Economic Forum 2001 affects the journalist concerned in his personal freedom as well as freedom of opinion, information and the press.»
#Prohibition of Censorship (Art. 17 para. 2 BV)
BGE 141 I 211 of 6 November 2015 Criminal court publication bans on media are only permissible with sufficient legal basis. A blanket prohibition on publishing certain information about an accused person constitutes inadmissible censorship.
«The prohibition pronounced by the criminal judge against court reporters under threat of regulatory fine to publish certain information about the accused was inadmissible for lack of sufficient legal basis.»
BGE 137 I 209 of 14 July 2011 Conditions for media access to court proceedings are permissible if they are proportionate. The journalist who does not comply with court conditions may be excluded from the proceedings.
«The reporter who does not comply with the court condition for access to the main hearing (here: maintaining the anonymity of the parties to the proceedings) may be excluded therefrom.»
#Editorial Secrecy (Art. 17 para. 3 BV)
BGE 140 IV 108 of 22 July 2014 The prohibition on seizure under Art. 264 para. 1 lit. c CCP covers not only documents held by media professionals, but also those held by the accused or by third parties. Editorial secrecy protects all communications between accused persons and media professionals.
«The prohibition on seizure covers not only documents held by media professionals, but also those held by the accused or by third parties.»
BGE 132 I 181 of 11 May 2006 Source protection can only be breached when there is an extraordinary public interest. The interest in clarifying a homicide does not automatically justify the disclosure of journalistic sources.
«The interest in clarifying the homicide in question here does not have the extraordinary weight that would permit compelling the journalist to disclose his sources of information.»
#Justification through Media Freedom
BGE 127 IV 122 of 11 October 2001 Media freedom does not justify incitement to violation of official secrecy. Journalistic activity does not per se legitimise unlawful gathering of information.
«Incitement to violation of official secrecy cannot be justified either by media freedom or by alleged journalistic professional duties.»
BGE 127 IV 166 of 11 October 2001 A journalist's unlawful entry for the purpose of gathering information cannot be justified by press freedom. The safeguarding of legitimate interests requires proportionate means.
«The requirements of the extra-legal justification of safeguarding legitimate interests are not fulfilled in the case of a journalist who illegally enters Switzerland together with a group of refugees.»
#Court Reporting and Public Administration of Justice
BGE 143 I 194 of 22 February 2017 The exclusion of media from court proceedings is only permissible where there are overriding opposing interests. The constitutional and democratic significance of public administration of justice requires restrictive handling.
«The constitutional and democratic significance of the principle of public administration of justice requires that exclusion of the public and media professionals from criminal court proceedings be permitted only very restrictively, i.e. where there are overriding opposing interests.»
BGE 147 I 463 of 26 May 2021 The principle of public administration of justice does not grant media professionals a right to inspect criminal files of concluded proceedings. Media freedom is limited to reporting on public hearings.
«The principle of public administration of justice and the statutory right to information do not form a sufficient basis for a right to inspect files of concluded criminal proceedings.»
#Broadcasting Freedom
BGE 136 I 167 of 10 December 2009 A right of access to broadcasting exists only exceptionally. The refusal of access to public service programmes is unconstitutional only in cases of discrimination or arbitrary treatment.
«Confirmation of the case law according to which a 'right of access to broadcasting' exists only exceptionally. If impairment of constitutionally protected positions is conceivable in connection with access to programmes, a case-by-case assessment must be made.»
#Freedom of Information and Principle of Transparency
BGE 142 II 313 of 18 May 2016 Art. 17 BV is closely connected with the principle of transparency in administration. Media freedom of information is given concrete form by the Federal Act on the Principle of Transparency in Administration.
«According to the federal Transparency Act, there exists a subjective right of access to official documents of federal administrative units, subject to statutory exceptions.»
BGE 127 I 145 of 27 June 2001 Freedom of information does not grant a general right to obtain information from sources that are not generally accessible. Access to archived criminal files is not covered by media freedom.
«Freedom of information and academic freedom do not confer a general right to obtain information from sources that are not generally accessible.»