1The Confederation is responsible for legislation on radio and television as well as on other forms of public broadcasting of features and information.
2Radio and television shall contribute to education and cultural development, to the free shaping of opinion and to entertainment. They shall take account of the particularities of the country and the needs of the Cantons. They shall present events accurately and allow a diversity of opinions to be expressed appropriately.
3The independence of radio and television as well as their autonomy in deciding on programming is guaranteed.
4Account must be taken of the role and duties of other media, in particular the press.
5Complaints about programmes may be submitted to an independent complaints authority.
Art. 93 BV governs the federal competence for radio and television legislation as well as the constitutional principles of broadcasting. The provision traces back to Art. 55bis old Constitution of 1984 and was extended to digital media in 1999 (BBl 1997 I 445). According to prevailing doctrine, the Confederation has comprehensive and exclusive legislative competence for radio, television and other electronic media forms (Dumermuth, BSK BV, Art. 93 N. 10).
Radio and television have a fourfold constitutional mandate: They shall contribute to education, cultural development, free opinion formation and entertainment. This programme responsibility is concretised in the Radio and Television Act (RTVG) of 2006. The Federal Supreme Court requires factually appropriate, non-manipulative reporting that enables the public to form their own opinions (BGE 137 I 340).
The independence of radio and television as well as programme autonomy are constitutionally guaranteed. This excludes state pre-censorship but allows subsequent control by the Independent Complaints Authority (UBI). The SRG is bound by fundamental rights even in social media activities and must respect users' freedom of expression (BGE 149 I 2).
A concrete example: If a television broadcaster reports one-sidedly on a political scandal in a news programme and conceals contrary viewpoints, it violates the requirement of factual appropriateness. Affected parties can lodge a programme complaint with the UBI (Art. 93 para. 5 BV, Art. 89 ff. RTVG).
The scope of federal competence for online media is disputed. Saxer limits this to programmes and functionally equivalent applications (Saxer, BSK BV, Art. 93 N. 14), while other authors see all public online communication as covered (Graber/Kerekes, sic! 2012, 421). The Federal Supreme Court has affirmed the binding effect of fundamental rights for SRG's social media presence without clarifying the fundamental question of competence.
Art. 93 BV is based on Art. 55bis old BV of 1984, which granted the Confederation comprehensive regulatory competence for radio and television (BBl 1981 III 746). The total revision of 1999 extended this competence to «other forms of public telecommunication transmission of programmes and information» to account for technological development (BBl 1997 I 445). The constitutional provision aims to provide electronic media with a constitutional framework that both recognises their social function and guarantees their independence (BBl 1997 I 446 f.).
Art. 93 BV is located in the section on federal competences and follows directly after Art. 92 BV (postal and telecommunication services). The provision has close connections to fundamental communication rights (→ Art. 16 BV freedom of opinion and information, → Art. 17 BV media freedom). It concretises freedom of information for the broadcasting sector and supplements it with specific institutional guarantees (Dumermuth, BSK BV, Art. 93 N. 4). The norm is primarily a competence provision with fundamental rights references, but is not itself a fundamental right (SGK BV-Ehrenzeller/Schindler, Art. 93 N. 2).
According to prevailing doctrine, the federal legislative competence for radio, television and other forms of public telecommunication transmission is comprehensive and has an originally derogating effect vis-à-vis cantonal law (Aubert/Mahon, Petit commentaire, Art. 93 N. 4; Cottier, in: Mäder/Uebersax, Art. 93 N. 12; Dumermuth, BSK BV, Art. 93 N. 10). A minority view sees competing competences of the Confederation and cantons, insofar as the Confederation has not made conclusive use of its competence (Biaggini, BV-Kommentar, Art. 93 N. 6; Tschannen, in: Tschannen/Zimmerli/Müller, § 5 N. 28).
N. 3.2Scope of Federal Competence
The scope of federal competence for online media is disputed. According to Saxer, Art. 93 BV only covers programmes and functionally equivalent applications (Saxer/Brunner, Rundfunkrecht, N. 142; Saxer, BSK BV, Art. 93 N. 14). The opposing view holds that all public communication in the online area falls under the legislative competence (Graber/Kerekes, sic! 2012, 421; Weber, Medienkonzentration, 87 ff.). BGE 149 I 2 answered this question for the other journalistic offerings of SRG to the effect that social media activities are also covered.
Radio and television have a constitutional service mandate with four elements: education, cultural development, free opinion formation and entertainment. These functions are of equal value, with the opinion formation function having particular weight (Müller/Schefer/Zeller, in: Müller/Schefer, 493). Consideration of the «particularities of the country» encompasses multilingualism, federalism and cultural diversity (Nobel/Weber, Medienrecht, N. 523).
N. 4.1Requirement of Factual Accuracy
The requirement of factual presentation does not demand absolute objectivity, but rather truthfulness and journalistic care (Barrelet/Werly, Droit de la communication, N. 1842). BGE 137 I 340 clarified that information programmes must be designed so that the audience can form its own opinion. Manipulative reporting is inadmissible.
N. 4.2Diversity Requirement
The appropriate presentation of diversity of opinion refers to the overall programme, not to individual programmes (Dumermuth, Programmaufsicht, 156). BGE 134 I 2 confirmed that personal portraits of politicians are also permissible if they do not have a one-sidedly propagandistic effect.
N. 5.1Independence from the State and Programme Autonomy (Para. 3)
The guaranteed independence encompasses both the institutional independence of broadcasters and editorial freedom (SGK BV-Zeller, Art. 93 N. 31). Programme autonomy excludes state prior censorship, but allows subsequent control by the OFCOM (Dumermuth, BSK BV, Art. 93 N. 35). BGE 139 I 306 extended the fundamental rights obligations of SRG to private law conduct in the advertising area.
N. 5.2Consideration Requirement (Para. 4)
The consideration requirement obliges legislators and enforcement authorities to consider the existence and function of other media (Weber, Rundfunkfreiheit, 234). However, it does not establish a claim to protection from competition (Dumermuth, BSK BV, Art. 93 N. 41).
N. 5.3Right of Appeal (Para. 5)
Art. 93 para. 5 BV guarantees a right of appeal to an independent instance for programme complaints. The OFCOM is not a censorship authority, but controls compliance with programme regulations after the fact (Dumermuth, BSK BV, Art. 93 N. 48). BGE 134 II 260 clarified that the OFCOM has no competence for the individual legal enforcement of personality protection.
The controversy over competing or exclusive federal competence remains unresolved. While Aubert/Mahon, Cottier, Mäder and Dumermuth assume comprehensive federal competence (Dumermuth, BSK BV, Art. 93 N. 10), Biaggini and Tschannen see room for cantonal regulations in areas not conclusively regulated (Biaggini, BV-Kommentar, Art. 93 N. 6).
N. 6.2Scope of Application for Online Media
The dispute over the coverage of online offerings divides doctrine. Saxer limits the competence to linear programmes and functionally equivalent offerings (Saxer, BSK BV, Art. 93 N. 14). The opposing position of Graber/Kerekes and Weber covers all public online communication forms (Graber/Kerekes, sic! 2012, 421).
Broadcasters must observe constitutional requirements in programme design, but have considerable creative freedom. Factual accuracy is to be judged more strictly for information programmes than for entertainment. For controversial topics, a balanced presentation of different viewpoints in the overall programme is recommended. Programme complaints must be submitted to the OFCOM within 20 days (Art. 95 RTVA). SRG is also bound by fundamental rights in social media activities (BGE 149 I 2).
BGE 149 I 2 of 29 November 2022
SRG is bound by fundamental rights in its other journalistic offerings and must guarantee the right to effective legal remedies.
This landmark judgment establishes the constitutional guarantee of the right to effective legal remedies in cases of SRG interference with freedom of expression through the deletion of user comments on social media.
«SRG is bound by fundamental rights in its other journalistic offerings (üpA); this also applies - due to the close substantive connection between its editorial contribution and user comments thereon - insofar as it deletes such comments based on its 'netiquette'.»
BGE 139 I 306 of 1 January 2013
SRG is bound by fundamental rights even when acting under private law in the advertising sector and may only reject advertising messages in cases of unlawful content or overriding proprietary interests.
The judgment clarifies SRG's fundamental rights obligations outside the actual programming area and establishes important standards for balancing interests.
«In its private law activities in the advertising sector, SRG is bound by fundamental rights. In doing so, it must take particular account (also) of the ideational content of fundamental rights. 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 136 I 167 of 1 January 2009
In principle, there is no «right to airtime», except in cases of constitutionally relevant impairments.
The judgment confirms the restrictive case law on access rights and shows the limits of the constitutional claim to programme access.
«As an emanation of media, programme and information freedom, there is in principle no 'right to airtime', i.e. no entitlement for a broadcaster to grant a specific person access to the programme.»
BGE 137 I 340 of 18 November 2011
Factual accuracy under Art. 4 para. 2 RTVA concretises the constitutional requirement of Art. 93 para. 2 BV and demands objective, non-manipulative reporting.
The judgment develops central criteria for the broadcasting law assessment of information programmes and their objectivity obligation.
«Editorial programmes with informational content should present facts and events in a factually accurate manner, so that the public can form its own opinion. A contribution must not overall have a manipulative effect, which is the case when the (interested) viewer is improperly informed in violation of journalistic duties of care.»
BGE 134 I 2 of 1 January 2007
Programme autonomy under Art. 93 para. 3 BV is guaranteed even for politically sensitive programmes in the run-up to elections, provided that the requirement of factual accuracy and diversity is observed.
The judgment shows the scope of programme autonomy for politically sensitive content and defines the limits of permissible editorial design.
«A personal, benevolent portrait of a politician with an unconventional career immediately before renewal elections does not violate broadcasting law requirements if it does not have a one-sided propagandistic effect and the public is informed about the special situation.»
BGE 131 II 253 of 17 December 2003
Provocative and qualitatively questionable journalism does not violate the requirement of factual accuracy if relativising elements are present in the overall assessment.
The judgment concretises the standard for investigative journalism and shows how controversial reporting can remain permissible under broadcasting law.
«The controversial film contribution on the topic of pension abuse by foreigners was provocative and qualitatively questionable in individual passages; however, in an overall assessment, it did not violate any programme provisions with regard to the relativising studio discussion.»
BGE 135 II 296 of 18 June 2009
The broadcasting law obligation to carry private television programmes requires that the programme contributes to a particular degree to fulfilling the constitutional mandate.
The judgment clarifies the requirements for access rights of private broadcasters to transmission networks and develops qualitative standards for programme content.
«For the issuing of a must-carry order under new law, the programme must contribute to a particular degree to fulfilling the constitutional mandate. A programme which, despite specifically Swiss sports contributions, continues to consist to a considerable extent of productions (call-in, erotica, fortune-telling) that offer no added value to the existing programme offering, does not meet this requirement.»
BGE 135 II 224 of 1 January 2009
The right to short reporting includes both «Physical Access» and «Signal Access» under reasonable conditions.
The judgment concretises the modalities of the constitutionally anchored right to short reporting and its practical implementation.
«The 'Physical Access' under Art. 72 para. 3 lit. a RTVA 2006 includes the authority to shoot one's own footage on site within the framework of technical and spatial possibilities.»
BGE 141 II 182 of 13 April 2015
The radio and television reception fee is to be qualified as an earmarked tax or levy sui generis and is not subject to value-added tax.
The judgment clarifies the legal nature of the reception fee and its tax classification in light of Art. 93 BV.
«Due to the development of radio and television law, the qualification of the reception fee as a regal levy cannot be maintained. Those who receive radio and television broadcasts exercise a constitutional right, whereby no transfer of rights within the meaning of Art. 3 lit. e VAT Act can exist.»
BGE 134 II 260 of 1 January 2008
Broadcasters of radio and television programmes are obliged to respect fundamental rights and human dignity, whereby the AIBC has no competence for the individual law enforcement of personality protection.
The judgment delimits broadcasting law from individual law protection claims and shows the limits of AIBC jurisdiction.
«Obligation of broadcasters of radio and television programmes to respect fundamental rights and in particular human dignity. Lack of competence of the Independent Broadcasting Complaints Authority to enforce individual law personality protection.»
BGE 132 II 290 of 24 May 2005
Summary of case law on programme law requirements: programmes must be factually accurate, diverse and conducive to opinion formation.
The judgment systematises the minimum broadcasting law requirements and develops a coherent system of programme control.
«The requirement of objectivity derived from the programme requirements of Art. 4 RTVA demands that the listener or viewer is not misled by the facts conveyed and can form his own opinion. However, a subjectively influenced presentation is permissible, provided it is recognisable as such.»
BGE 138 I 154 of 1 January 2012
Neither the APA nor the RTVA provides for a general obligation to conduct a second exchange of written pleadings in complaints proceedings before the AIBC.
The judgment clarifies the procedural law requirements in broadcasting law complaints proceedings and the scope of the right to be heard.
«The right to reply is not identical with the right to a second exchange of written pleadings and can under certain circumstances also be granted in other ways, for example through the possibility of taking a position on new points in the context of oral proceedings.»