Lexploria

Information Note on the Court’s case-law 235

December 2019

Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland (dec.) - 68995/13

Decision 12.11.2019 [Section III]

Article 10

Article 10-1

Freedom of expression

Finding by authorities of omission which upset requisite balance in information presented by television programme, and suggested means of restoring balance: inadmissible

Facts – The Swiss Broadcasting Corporation (SSR) is a private-law association holding the public broadcasting service franchise. Under the Constitution and in line with its State franchise, it is required to provide the public with objective and balanced informa tion.

In January 2012, in the framework of a health information and advice series, the SSR broadcast a half-hour TV programme on the subject of botulinum toxin (Botox) and its use in the treatment of wrinkles. The programme addressed many aspects of Botox, but did not mention the mass use of testing on animals (DL-50 tests), which was lethal to the animals used: only the programme’s website, which was mentioned in the programme credits list, provided any information on that subject.

The Independent Broadcas ting Complaints Authority (AIEP), further to a complaint from an animal welfare association, concluded that the SSR had failed in its legal duty to present facts in a reliable manner. It held that, considering the nature of the programme, its length and th e variety of themes and sub-themes dealt with, the impugned omission could not be dismissed as being of secondary importance. The AIEP asked the SSR to report to it on measures adopted following the finding of a violation. It did not require payment of pro cedural costs.

In April 2013 the Federal Court dismissed the SSR’s appeal: noting that the issue of the ethical justification for the DL-50 tests was an acknowledged problem, it ruled that it would have been possible without distorting the programme, and n ecessary in order to guarantee the free formation of public opinion – particularly potential customers – to explain that a specific feature of Botox was that testing had to be carried out on animals for each production batch (and not just selectively, as i n the case of other products and medicines), which led to the deaths of hundreds of thousands of mice. The judgment of the Federal Court also comprised information on how the freedom of programme design should be linked up with respect for the ethics of jo urnalism, especially in the framework of a public service.

In September 2013 the SSR applied to the European Court.

Meanwhile, the SSR submitted its report to the AIEP on the measures taken, including the fact that the impugned broadcast had been removed from the corporation’s video portal. In August 2013 the AIEP replied that the withdrawal of the broadcast had not bee n strictly necessary (it would have been sufficient to mention the decisions given), but expressed partial dissatisfaction (in view, in particular, of the tenor of the comments on the Federal Court’s judgment circulated to the journalists on the editorial team). The proceedings were nevertheless closed, and the case file was not transmitted to the Federal authority responsible for sanctions.

In 2013 and 2015 the SSR broadcast two further programmes on Botox without mentioning the testing on animals require d to manufacture the product.

Law – Article 10: The present case only concerns the decisions given by the AIEP and the Federal Court to the effect that the applicant corporation had failed to mention in the impugned programme a major aspect of the subject addressed, in order to guarantee the free formation of public opinion.

Although the interference concept is very broad and can cover a wide variety of modes of interference (compliance with formalities or conditions, restrictions, sanctions, etc.) on the part of the State authorities, it is nonetheless closely linked to the concept of a chilling effect on the exercise of the freedom of expression. Furthermore, “purely hypothetical risks” are insufficient.

In the instant case the applicant corporation merel y alleged that the impugned decisions had had serious effects on programme design and had caused major legal uncertainty. Yet there was no indication that those hypothetical events had actually occurred. The Court noted, in particular, that:

– there had b een no ban on broadcasting the impugned programme;

– the aspect in question had been mentioned on the applicant’s website, showing that the corporation was aware of the problem; and it would have been sufficient, in the national authorities’ view, to explicitly refer to the website during the programme;

– the applicant had at no stage been ordered to remove the impugned programme from its video portal;

– as a public service provider and franchisee, the applicant was only required by law to inform the AEIP of the arrangements it had made to prevent any simil ar violations in future; notwithstanding the partial dissatisfaction with the measures taken, the proceedings had been closed;

– the applicant had continued, in subsequent programmes on Botox, not to mention the testing on animals, without incurring any l egal consequences.

Furthermore, the Court dismissed the applicant’s arguments:

– regarding the fact that the documentary film purchased for the impugned programme would now be unusable: the domestic decisions had not banned the use of the film in question;

– concerning the AIEP’s comment to the effect that it would have been sufficient for the applicant to have mentioned the existence of the domestic decisions on its website: that measure had pursued the public-interest aim of guaranteeing the free formatio n of public opinion, that is, enabling each individual to form his or her own opinion; the AEIP had not given further details on how the information had to be provided on the judicial decisions, leaving the SSR free to choose how to display data on the dec isions on the video portal.

Since no chilling effect could be discerned in the present case, the impugned decision had not amounted to an “interference” with the applicant’s exercise of its freedom of expression.

Conclusion : inadmissible (manifestly ill-f ounded).

(Contrast with Dilipak v. Turkey , 29680/05, 15 September 2015, Information Note 188 , concerning criminal proceedings commenced and then discontinued as statute-barred)

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