The Swiss Penal Code plays a considerable role in connection with restrictions placed on journalism. The case of Ambassador Jagmetti’s strategy paper mentioned above137
demonstrates the precariousness of the balancing act between protecting confidential documents on the one hand and protecting the public interest on the other. For the Swiss Press Council, Article 293 of the Swiss Penal Code, which was applied in this case, is an “authoritarian relic” (Studer 2001). Prohibitions or demands vis-à-vis the media are usually based on the Swiss Penal Code, that is on Article 293. This article is, however, the subject of some controversy and from time to time efforts are made to have it abolished.
For example, both the Federal Department of Justice and Police (in a draft drawn up in November 1986 on possible amendments to media law under the current penal code and procedural law) and the study group on media law Medienstraf- und
Verfahrensrecht commissioned by the same Federal Department (in their report of
1991) demanded the deletion of this article without replacement. The Federal Council too, when replying to a motion by National Councillor Paul Rechsteiner, considered this article to be in need of revision. In 1997, at the time of the revision of the Medienstraf-
und Verfahrensgesetz (media laws) the Federal Council once again pointed out the
ineffectiveness of this article.138 Another exponent of this point of view is Gerhard
Fiolka, lecturer in Criminal Law at the University of Fribourg (Fiolka 2002). He considers the provisions concerning official secrets ill-suited to the purpose of
combating indiscretions. According to Fiolka, these provisions do not deter journalists. Furthermore, the facts constituting an offence concern a process that was merely a result of the actual indiscretion (Gerny König 2006).
136 See subchapter 7.2: The Swiss Penal Code, p.93; and subchapter 7.3: The Swiss Civil Code, p.96 137 See subchapter 6.6: The Swiss Federal Supreme Court restrained by the ECHR, p.84
138 Nationalrat, Amtliches Bulletin. Medienstraf- und Verfahrensrecht. Frühjahresseesion, Nr 96.057. (Minutes of National Council on Media Legal Proceedings. Spring session, Nr 96.057.),19 March 1997 (http://www.parlament.ch/ab/frameset/d/n/4506/148825/d_n_4506_148825_148928.htm, consulted 10 March 2007).
To date, this article has withstood all attempts to abolish it. As Fiolka remarks: “It is worrying that parliament has an even greater need than the authorities to sanction the undesired disclosure of information to the public.” (Fiolka 2002).
Article 293 of the Swiss Penal Code and the corresponding Article 106 of the Military Penal Code139 are not the only regulations pertaining to the media. The actual media
laws are to be found in Article 27 of the Swiss Penal Code, which regulates the penal liability of the media, Article 27bis, which defines the protection of sources, and Article 322, which defines the media’s duty to provide information.140
Editorial secrecy and the protection of sources are constantly coming under pressure. For example, in the summer of 2005 the prosecuting authorities in Zurich tried in court to have the protection of sources lifted in connection with the report on a heart
transplantation at the University Hospital of Zurich with a fatal outcome. The NZZ am
Sonntag wanted to protect its informants, who were accusing the senior consultant who
had carried out the operation of taking a calculated risk (Ninck 2005).
In the first instance, the Zurich High Court followed the arguments of the newspaper. The court found that, firstly, lifting the protection of sources was not absolutely necessary for the purpose of the investigation and, secondly, there was no strong suspicion that the doctor in question might have committed voluntary homicide, neither had the newspaper report made such an accusation, even if the informants had voiced suspicions (Gyr 2005). In the appeal proceedings the second chamber reversed the decision of the court of the first instance, saying that the accusation of possible voluntary homicide could not be clarified without access to the source of information. The High Court invoked the above mentioned Article 27bis, Para. 2 of the Swiss Penal Code, which cites exceptional circumstances under which the protection of sources can be lifted. This is possible if a homicide or other serious crime cannot be clarified without revealing the identity of informants.141
The NZZ am Sonntag was shocked by this decision. Referring to the Federal
Constitution and the European Convention on Human Rights (Gyr 2006), the NZZ am
Sonntag appealed to the Federal Supreme Court against the decision. The newspaper
139 See chapter 8: The Secretiveness of the Military, p.104 140 The same norms apply to the Military Penal Code, cf. Art. 26b. 141 Art. 27bis Swiss Penal Code
was successful: in a decision of 11 May 2006, the Federal Supreme Court confirmed the protection of sources and thus overturned the decision of the of the court of second instance. Meanwhile, the state prosecutor had extended the investigations to include the possibility of voluntary homicide, in the hope of having the protection of sources lifted, but this did not influence the decision of the Federal Supreme Court. In its decision, the Federal Supreme Court pointed out that lifting the protection of sources had to be appropriate under the circumstances, which was not the case here142.
Apart from these questionable articles relating to the media, journalists negotiating the minefield of the Swiss Penal Code also need to bear in mind that there are other articles under which they can be charged with offences. These concern defamation of character, libel, slander, the unauthorised opening of letters or the unauthorised recording of conversations. In order to record a private conversation or interview, it is necessary to obtain the permission of the discussion partner(s).143 The acoustic or
visual recording of aspects of a person’s private life also requires the consent of the person concerned.144 Journalists may also be restricted by the above mentioned Anti
Racial Discrimination Law, although no infringement of Article. 261bis on the part of the media has been recorded to date.
On the other hand, journalists have already been convicted of incitement to breach the Official Secrets Act under Articles 24 and 320 of the Swiss Penal Code.145 A Swiss
court of the first instance also convicted and fined a journalist for illegally crossing the border after the journalist – in the style of “undesirable journalist” Günter Wallraff146 –
had disguised himself as an illegal immigrant. However the verdict was overturned by the court of the next-higher instance – in the interests of freedom of the press (Cortesi 1999).
142 BGE-Publication, Decision 6P.45/2006 143 Art. 179ter Swiss Penal Code
144 Art. 179quater Swiss Penal Code
145 See subchapter 6.6: The Swiss Federal Supreme Court restrained by the ECHR, p.84
146 The author and journalist Günter Wallraff became well-known during the 1960s and 1970s for his clandestine reporting. He played a major role in the development of investigative journalism in Germany and Switzerland.