Media Law Conference 2015

This year's media law conference at Brasserie Lipp was held under the motto "from the mission of observing the observers". For the media are not only observers, they must of course also comply with media ethics and legal requirements. "So what are the guidelines when it comes to the publication of sensitive journalistic content, for example?" was the central question at the 2015 Media Law Conference, because the guidelines are not only very complex, often a matter of interpretation, and also difficult to compare. They are also influenced by divergent interests of private individuals, politicians and lawyers. According to one of the conclusions of the conference, the entire discourse can be simplified to focus on the balancing of public interest and interest in preserving the relevant secret. At the same time, it became clear in this context that in an increasingly dynamic environment, diligence has the highest priority. In the case of media dissemination of covert sound and image recordings, recent rulings show that the European Court of Human Rights (ECHR) in Strasbourg attaches great importance to the role of the media as "watchdogs of society," while the Swiss Federal Supreme Court is rather skeptical about exposing wrongdoing by unconventional journalistic means. Attorneys Rudolf Mayr von Baldegg and Christoph Born illustrated this with two examples: on the one hand, the now famous "Kassensturz" program, in which the controversial sales practices of insurance brokers were filmed with a hidden camera and broadcast in 2003; on the other hand, the violation of Article 293 of the Swiss Penal Code by a journalist in 1997. Ursina Wey concluded the complex of topics with a detailed description of two complaint cases submitted to the Press Council, as well as the topic of court reporting, which the Press Council took up on its own initiative.

This year's media law conference also focused on the current status of the supervisory proceedings of the Association of Swiss Media against Swiss Post, an introduction to the functions of HbbTV, and a presentation by Hanspeter Kellermüller, Head of the General Secretariat of the NZZ Media Group, on the topic of Big Data. Finally, attorney Markus Prazeller outlined the legal pitfalls of integrating social media into news platforms.

From a media ethics perspective

Ursina Wey spoke to Werbewoche about media ethics and the work of the Press Council: According to Wey, it is anyone's guess why very few complaints are still received in the digital sector, even though the fast-moving online activity is subject to a much higher error rate. The reason may lie in a change in users' attitude toward online media.

WW: At the Media Law Conference, you presented three cases that have occupied the Press Council. How much do the individual cases concern the Presidium in each case?
Ursina Wey: There are cases on which the Presidium quickly agrees because they seem clear. But fundamentally, each case raises new questions. In doing so, the Press Council falls back on previous practice, i.e. on previous opinions. But every decision is a new struggle with the question: What is still permissible from the point of view of media ethics, and what is not. In the chambers, there is always a lively exchange about the current cases, and there are also very controversial discussions. Sometimes, rarely to be sure, a vote is taken on individual points if two factions are opposed and simply no agreement can be reached. As a rule, however, discussions continue until a common denominator is reached.

Which guidelines play the main role in decision-making?
The basis of the Press Council's opinions is the "Declaration of the Duties and Rights of Journalists," also known as the Journalists' Code. Each case is first discussed by the Presidium. If, for example, a complaint is obviously unfounded, or if it is largely in line with cases previously dealt with by the Press Council, or if it appears to be of minor importance, then the Press Council will take a decision. If, for example, a complaint is obviously unfounded, or if it is largely in line with cases previously dealt with by the Press Council, or if it appears to be of minor importance, the Presiding Board decides. Controversial cases and those that raise new questions are referred to a chamber. The chambers also rely on the practice of the Press Council, on the decisions in similar cases. Comparable cases are consulted in order to continue the practice or to establish that in this particular case a diametrically different decision is to be made. Accordingly, the statements of the Press Council also repeatedly refer to past practice. Principles from past cases can thus be applied to current cases.

The Press Council's opinion is very limited in its impact, as it has no sanctioning powers. People talk about the "toothless tiger." How do you see that?
The Press Council offers a very differentiated weighing up of media ethics issues; it is a reflective body that takes the time to discuss each individual case in detail. The Press Council can only be convincing if it makes decisions that are sustainable. It is the quality of its decisions that makes it credible. The image of the tiger is therefore somewhat misleading in this context. Of course, the Press Council has no sanctioning powers, that is by design. Its discourse should be taken note of.

Do the digital changes mean new cases, new difficulties for the Press Council?
Interestingly, the Press Council has not received that many complaints in the area of purely digital media. However, it regularly receives complaints in connection with online comments. Often, complaints are directed simultaneously against a print article and against its version published online. Of course, the same criteria apply here as for articles published only on paper. At present, the Press Council has received a few cases involving online media, but as mentioned, they are rare.

What do you think is the reason for that?
That's an interesting phenomenon, I can only speculate. I wonder whether users apply a fundamentally different standard to online media. The reason for this could be seen in the fast pace of life. Within the Press Council, this is of course an important topic - especially the question of how digital media use is changing the job description of journalists and everyday editorial work. The Press Council began addressing issues in this area at an early stage. In 2000, for example, it published a statement on the subject of journalistic ethics on the Internet, and in 2010 it took up the subject of the Internet and privacy, thus attempting to draw up guidelines for questions that arise in the digital world.

Interview: Ursina Maurer