SWITZERLAND

Expert assessment

It is not accurate to reference the Department of Environment, Transport, Energy and Communication (DETEC) as performing the "duties of the media authority" in Switzerland. DETEC is only responsible for awarding licenses to broadcasters.127 The regulator for broadcasting is the Federal Office of Communications (OFCOM),128 which is subordinated to the DETEC and part of the federal administration.129 In Switzerland, media regulation is managed by several different bodies: the OFCOM is responsible for overseeing most of the provisions of the Federal Act on Radio and Television of 2006 (RTVA), which governs broadcasting, processing, transmission and reception of radio and television "programme services" in Switzerland;130 and the Independent Complaints Authority for Radio and Television (ICA) is an independent regulatory agency that deals with complaints about the content of editorial programmes of all programme services (traditional linear television and radio programmes, irrespective of the form of transmission).131

As noted, the OFCOM is part of DETEC and thus part of a government ministry.132 The federal administration of Switzerland consists of seven federal departments (among them the DETEC) and the Federal Chancellery.133 Each department consists of several federal offices (including the OFCOM), headed by a director. The director general of the OFCOM is appointed by the government for unrestricted term lengths.134 Employment with the director of the OFCOM can be terminated by the government, as the OFCOM is part of the Federal Administration.135 However, while is accurate to claim the OFCOM is not formally independent from government, the Swiss political system of "concordance democracy" is such that no single party has a majority in Parliament and appointments to federal offices are therefore not prone to party-political influence.

The ICA has nine part-time members appointed by the government. The ICA is independent and not bound by any directives.136 All members of the ICA are appointed at the same time (coinciding with election cycles) for four-year terms;137 additional appointments are made in case of vacancies and end with the normal term length.138 The maximum term length is restricted to 12 years, but in extraordinary cases the Federal Council may prolong the term length to 16 years.139

Members of Parliament, state employees or employees of Swiss broadcasters cannot be elected to the ICA.140 When appointing members, the Federal Council must ensure that both genders and the different linguistic regions are represented.141 Beyond this, there are no formal professional requirements for membership. But in practice, most of the members of the ICA have either a legal or a journalism background. For instance, the current head of the ICA is a former professor of communication studies and journalist. In the explanatory notes of the Radio and Television Ordinance (RTVO), the government also states its commitment to appointing members of the ICA according to professional and not party-political considerations.142

The ICA is an independent agency and governmental intervention is precluded by law: government is not allowed to intervene.143 The members of the ICA cannot be recalled by the government or any other political institution. Again, it is of major importance to highlight Switzerland's unique political system. The country is a so-called "concordance democracy" and there is no government-opposition system. The seven-member Federal Council (government) is a grand coalition. The seats are distributed in approximate relation to the (major) parties relative strength in the Federal Assembly (parliament). As a consequence, no party dominates and decisions in the Federal Council are normally arrived at by consensus. This also means that changes in government do not involve a change of the ruling parties and thus also no change of heads of the administration. In sum, the Swiss political system is not prone to party political influence on any of the departments and federal offices (e.g. OFCOM). As government decisions are based on consensus, federal offices are not politicized.

However, the Federal Council retains the right to give instructions to the directors of federal offices like OFCOM, which are subordinated to them. Nevertheless, federal offices usually perform their tasks without political interference. The authority to give directions is usually restricted to strategy and policy. Regulatory decisions are usually not interfered with. In addition, the Swiss Press Council holds all media (press, radio, TV, websites of traditional media) to its self-regulatory code of professional ethics.

126 "Reply to the criticisms expressed by the international media against the Media Act," Ministry Of Public Administration And Justice, January 3, 2011, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/reply-to-the-criticism-of-the-international-media.
127 See Article 45(1) of the Federal Act on Radio and Television (RTVA), (784.4), 4 March 2006 (status as of 1 February 2010), unofficial English translation available at: http://www.admin.ch/ch/e/rs/784_40/a45.html.
128 See Federal Office of Communication (OFCOM) website at: http://www.bakom.admin.ch/index.html?lang=en.
129 See OFCOM's mission and legal framework: http://www.bakom.admin.ch/org/strategie/index.html?lang=en#sprungmarke3_1.
130 Federal Act on Radio and Television (RTVA), Article 86(1), unofficial English translation available at: http://www.admin.ch/ch/e/rs/784_40/a86.html.
131 See Independent Complaints Authority for Radio and Television website, available at: http://www.ubi.admin.ch. Federal Act on Radio and Television (RTVA), Articles 4, 5, 83(1) and 86(1), unofficial English translation available at: http://www.admin.ch/ch/e/rs/784_40/index.html.
132 OFCOM's mandate derives from the Federal Act on Radio and Television (RTVA), (784.4), The Federal Assembly of the Swiss Confederation, 4 March 2006 (status as of 1 February 2010). unofficial English translation available at: http://www.admin.ch/ch/e/rs/784_40/a45.html.
133 Federal departments are roughly equivalent to the ministries of other states, but their scope is generally broader.
134 Federal Personnel Ordinance (BPV), Article 2(1)(b), in German at: http://www.admin.ch/ch/d/sr/1/172.220.111.3.de.pdf.
135 Federal Personnel Ordinance (BPV), Article 2(1)(b) and Article 26, in German at: http://www.admin.ch/ch/d/sr/1/172.220.111.3.de.pdf. 136 Federal Act on Radio and Television (RTVA), Article 84, unofficial English translation available at: http://www.admin.ch/ch/e/rs/784_40/a84.html.
137 Government and Administration Organisation Act (RVOG), Article 57c(2) and 57c(3), available in German at: http://www.admin.ch/ch/d/sr/s/172.010.de.pdf.
138 Government and Administration Organisation Act (RVOG), Art. 57c(3), 57c(4) and 57d, available in German at: http://www.admin.ch/ch/d/sr/s/172.010.de.pdf; Government and Administration Organisation Ordinance (RVOV), Article 8g and 8h(1), available in German at: http://www.admin.ch/ch/d/sr/1/172.010.1.de.pdf.
139 Government and Administration Organisation Ordinance (RVOV), Article 8i(1) and 8i(2), available in German at: http://www.admin.ch/ch/d/sr/1/172.010.1.de.pdf.
140 Federal Act on Radio and Television (RTVA), Article 82, unofficial English translation at: http://www.admin.ch/ch/e/rs/784_40/a82.html.
141 Radio and Television Ordinance (RTVO), Article 75, unofficial English translation available at: http://www.admin.ch/ch/e/rs/784_401/a75.html.
142 Radio and Television Ordinance (RTVO) Explanatory Notes, Article 75, available in German at: http://www.bakom.admin.ch/dokumentation/gesetzgebung/00512/01031/index.html?lang=de&download=NHzLpZeg7t .
143 Federal Act on Radio and Television (RTVA) Article 84, available at: http://www.admin.ch/ch/e/rs/784_40/a84.html.