Unauthorized advertising on the radio: SRG loses in federal court
How and when is the SRG allowed to advertise its own programs on its own channels? This ambiguous question has now been clarified by the Federal Supreme Court.
The starting point was formed by trailers that were broadcast fifty times on the radio stations SRF1 and SRF3 in winter 2015. The show "Die grössten Schweizer Talente" was advertised on the TV station SRF1.
Actually, advertising on SRF radio stations is prohibited. So the question was: Can Radio SRF advertise for SRF TV programs?
Bakom wanted to prevent repetition of the case
How the Switzerland at the weekend reported in the current issue, the spots in question brought Bakom onto the scene. For the Federal Office, it was clear that SRF was violating the advertising ban. According to Bakom, program references are only permitted if they are directly related to broadcasts. If, for example, a football match is reported on the radio, it may be pointed out that it can be seen on television on SRF2. This broadcast connection was not given in the case of "Die grössten Schweizer Talente".
The verdict had no consequences for SRF. However, the broadcaster was asked to take measures to ensure that the incident does not happen again.
Federal Administrative Court should clarify question of principle
SRF did not accept the injunction, however, because a fundamental question was at stake: Is it permissible to use the large free reach of SRF stations to advertise its own offerings? And if so, where and how exactly should advertising be restricted? SRF wanted clarity and took the question to the Federal Administrative Court.
The court ruled in favor of the station, at least in part: Self-promotion on radio stations is permissible if it "predominantly serves to engage the audience", according to the ruling. That would actually have been the case in this instance - but it did not change the fact that SRF had violated the law. The reason: The spots for the TV program ran in normal broadcasts without an acoustic separation signal, although they should have been clearly separated from the editorial program.
SRG could not and would not live with this decision either and took the case to the Federal Court. They did not want to accept the requirement that there had to be a context in terms of content in order to be considered a "program reference". The SRG was sure that this rule, which had been laid down by the Federal Council, contradicted the Radio and Television Act. As a program reference, the trailer could have been broadcast without restrictions.
Federal court confirms ruling
Now the federal judges found that the spot was illegal. It was very much an advertisement and not a program guide. The Federal Court ruled that the required context for program notes was in conformity with the law and the constitution.
How the Switzerland at the weekend writes, the ordinance has been amended in the meantime. References to programs are now no longer considered advertising if they do not have an "advertising character". However, even the amended ordinance would not have changed the ruling, because the "Schweizer Talente" spot was definitely promotional in its presentation.
