Short Reporting Rights: Clarifications from the Swiss Federal Administrative Court
In the landmark decision Sunrise v SRG SSR concerning the rights to short reporting on public events, the Swiss Federal Administrative Court (SFAC) has delivered a nuanced verdict. This case is important for understanding the evolving landscape of media rights, particularly in the context of digital transformation and the growing importance of streaming services.
The Case
The case involved Sunrise GmbH, a holder of exclusive media rights for National League AG's ice hockey games, and the Swiss Broadcasting Corporation SRG SSR (SRG), which sought to exercise its right to short reporting based on Article 72 of the Federal Act on Radio and Television (RTVG). The dispute centred on the following three points:
- when the short reports may be broadcasted;
- whether SRG could make such short reports available on “on-demand” digital platforms; and
- whether Sunrise must provide a signal free of additional information such as “MySport” graphics.
The SFAC based its decision on an interpretation of Article 72 RTVG and the related ordinance (RTVV), in particular Article 68 on short reporting rights.
No Waiting Period
First, the SFAC clarified that no waiting period after an event, such as an ice hockey game, is required by law for short reporting. This interpretation aligns with the European Convention on Transfrontier Television, which merely suggests that secondary broadcasters should not air short reports before the primary broadcaster has had the opportunity to show the main event but does not state a waiting period. Hence, the lower court was correct in not imposing a waiting period that SRG would have had to observe between the end of the game and the broadcasting of the short report, reaffirming the principle that short reports should not hinder the primary broadcaster’s exclusive rights.
On-Demand Platforms Permitted
Since on-demand consumption was not prevalent when the RTVG was enacted, the SFAC had to interpret Article 72 RTVG, considering the wording, historical context, purpose, and relationship with other norms. It concluded that while the right to make short reports available on-demand on digital platforms is generally compatible with the wording and intent of Article 72 RTVG, the historical, systematic, and constitutional reasons only partially support the lower court's interpretation that the right to short reporting also covers reports made available on-demand, serving the public interest in free access to information about public events in the digital realm. In the SFAC’s view, such an interpretation is permissible only to the extent that it aligns with the technology-neutral linear program concept, limits the impact on the primary broadcaster's exclusive rights, and considers the principles of international law. Any further extension of on-demand short reporting should be addressed by the legislative or regulatory authorities. In practical terms, this means that a broadcaster can only offer a linearly broadcast program with one or more short reports unchanged for on-demand access on digital platforms.
However, it is not permissible for the broadcaster to use short reports to the detriment of the primary broadcaster's rights by making them available on-demand outside of the linear broadcast. The on-demand short report must not contain new content or formal elements or be editorially altered. It is also not permissible to broadcast short reports on linear programs for some matches and offer additional matches on-demand. These methods of distribution are not supported by Article 72 RTVG.
Clean Signal Delivery
The question whether SRG is entitled to receive the signal without the disputed additional elements (referred to by the parties as “Clean Clean Feed”) is based on various legal elements. The historical context suggests that the right to short reporting includes a signal without these additional elements, and any further design should be mutually agreed upon by the parties. The purpose of the short reporting right is to ensure public access to information and journalistic diversity. In the SFAC’s view, SRG convincingly argued that receiving a signal with additional elements could limit editorial freedom and affect the quality of reporting. The interests of Sunrise in the economic exploitation of exclusive rights are not unreasonably impaired by providing a clean signal, as SRG must upon request of Sunrise clearly display the source indication "Images from MySports" throughout the duration of a short report. In conclusion, the interpretation of the law confirms that the statutory right to short reporting includes the right for SRG to receive and use the signal without the disputed additional elements.
Conclusion
The SFAC’s decision clarifies key issues on short reporting rights for public events. SRG can show match reports immediately after a match, without a waiting period, aligning with the European Convention on Transfrontier Television. The SFAC permits SRG to post excerpts on electronic platforms only if they are unaltered and complement the linear TV broadcast, thus protecting primary broadcaster’s exclusive rights. The SFAC also ruled that Sunrise must provide SRG with a clean transmission signal, including a source indication but without additional graphics. This ensures SRG's editorial freedom and the quality of reporting while respecting Sunrise's economic interests. The SFAC's balanced verdict is an important development in media law, addressing the intersection of traditional broadcasting rights and emerging digital platforms.
Judgment A-615/2023 and A-660/2023 dated 10 July 2024 (not yet final - available in German only)
