N. 1 Legislative History
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.).
N. 2 Systematic Classification
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. 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).
N. 3 Elements of the Offence / Content of the Norm
N. 3.1 Federal Competence (Para. 1)
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). 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. 3.2 Scope 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). 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.
N. 4 Service Mandate (Para. 2)
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. 4.1 Requirement 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. 4.2 Diversity 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 Legal Consequences
N. 5.1 Independence 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. BGE 139 I 306 extended the fundamental rights obligations of SRG to private law conduct in the advertising area.
N. 5.2 Consideration 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.
N. 5.3 Right 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. BGE 134 II 260 clarified that the OFCOM has no competence for the individual legal enforcement of personality protection.
N. 6 Disputes
N. 6.1 Scope of Federal Competence
The controversy over competing or exclusive federal competence remains unresolved. While Aubert/Mahon, Cottier, Mäder and Dumermuth assume comprehensive federal competence, Biaggini and Tschannen see room for cantonal regulations in areas not conclusively regulated (Biaggini, BV-Kommentar, Art. 93 N. 6).
N. 6.2 Scope 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. The opposing position of Graber/Kerekes and Weber covers all public online communication forms (Graber/Kerekes, sic! 2012, 421).
N. 7 Practice Notes
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).