TV commercial does not violate ban on political advertising

Between 11 and 18 August 2020, a commercial was aired multiple times on behalf of an alleged non-profit organisation on the television stations Tele Züri, 3+, 4+ and 5+, which are owned by the media company CH Media. This commercial showed a girl exalting the beauty of nature while walking through mountain scenery, over green meadows, in a town and by a lake, calling on viewers to help protect the landscape. The words “Für den Schutz von Landschaft und Kultur der Schweiz” (“For the protection of Switzerland’s landscape and culture”) were superimposed over the closing image.

On 18 August 2020, a video appeared online containing more or less the same images as the TV commercial in the first part, with new images and messages added to the second part. The online video ended with an appeal to support the Federal Popular Initiative “For moderate immigration (Limitation Initiative)” in the popular vote on 17 September 2020.

Requirements under Swiss radio and television law
The Federal Office of Communications (OFCOM) subsequently conducted an investigation into this advertising campaign and, in February 2021, determined that CH Media TV AG had violated the ban on political advertising before public votes by broadcasting the TV commercial and demanded that the advertising revenue be handed over to the Federal Treasury. CH Media TV AG appealed this decision to the Federal Administrative Court (FAC).

The Federal Act on Radio and Television (RTVA) prohibits radio and television stations from broadcasting political advertising on matters which are the subject of a popular vote.

Judgment of the FAC
The FAC has upheld the appeal lodged by CH Media TV AG. In its judgment, it finds, firstly, that the online video released on the Internet following the broadcasting of the TV commercial is not subject to the ban on political advertising before public votes pursuant to the RTVA.

It also notes that there was no discernible link to the Limitation Initiative or any related matter in the TV commercial. It therefore could not be deemed to be prohibited political advertising at the time of broadcasting. The FAC would have judged differently had the releases of the two films overlapped, so television viewers would have already been familiar with the online version when the TV commercial was aired.

Media companies are required to ensure that they do not broadcast advertising that violates the ban on political advertising before public votes. If this ban is violated because a media organisation has failed to exercise sufficient due diligence, it may be held accountable. In this particular case, however, it was not possible for the broadcaster to establish that the TV commercial was part of a cross-media voting campaign before the online video was released.

This judgment may be appealed to the Federal Supreme Court.