The Swiss Federal Court has upheld the protection of an information source in a landmark ruling for internet news portals.
It rejected an appeal by the prosecution calling for the identification of a user who had contributed to a feedback blog – setting a precedent that bolsters media freedom in Switzerland.
“The ruling is remarkable because it marks the first time that the Federal Court has supported source protection in connection with a medium’s blog. It is also in keeping with the court’s previous findings recognising the media’s role as a ‘watchdog,’” Zurich University law professor Rolf H. Weber told swissinfo.ch.
The case began in August 2009, when a user allegedly made a libellous remark about a third person on a blog maintained by the Swiss Broadcasting Corporation’s (SBC) main television channel.
Identified only as “A.M.” online, the user added his pejorative comment to a blog related to a programme called “Alpenfestung – Leben im Reduit” – a living history project simulating the Second World War period.
The subject of the comment pressed charges against the anonymous user for libel and misuse of a communications system. This led the public prosecutor’s office in canton Zug to ask the SBC, swissinfo.ch’s parent company, to reveal the user’s IP (internet protocol) address.
The SBC refused, arguing that disclosing the information would conflict with its commitment to shielding its sources. However, the prosecution believed that there were no grounds to protect the IP address and took the case to Switzerland’s highest court.
On Wednesday, the Lausanne-based Federal Court ruled three to two in favour of Swiss Television (SF).
“Federal Judge Heinz Aemisegger... emphasised that the meaning of source protection as well as editorial secrecy had to be judged above and beyond the specific case in question,” explained Rudolf Mayr von Baldegg, SF’s legal consultant.
In a report released on Thursday, Mayr von Baldegg wrote that the court had found that such a blog was clearly a form of editorial content; the question was whether the content served to inform or to entertain.
Two of the five judges were of the opinion that the comment had no informational value in connection with the television programme – and was therefore not covered by the Swiss law shielding media sources.
Yet: “A person writing a comment on a blog has to be able to assume that his expression of opinion offered to that medium will be protected and not passed on to the authorities in the course of compulsory measures,” stated Mayr von Baldegg in his report.
Ultimately, the court decided that it was more important to protect the communication medium while preventing regulatory measures against the media.
“It’s difficult to define the boundary between information and entertainment; only information benefits from source protection,” said Weber.
In addition, he noted that the ruling had placed the burden of checking blog entries on the media enterprises.
“With this ruling, the Federal Court has also made the media responsible for avoiding violations of personal rights through information posted in blogs,” said Weber.
Dominique von Burg, president of the Swiss Press Council, is satisfied with the ruling as it preserves freedom of the media.
He told the Swiss News Agency it would be reprehensible if the media became an assistant to the justice system. However, he added that there was an obligation tied to that freedom.
“The media companies must take responsibility and monitor their blogs,” von Burg said, pointing out the need for discussion forums and blogs to be moderated.
As Weber noted, “Sociologically, the chance to post comments seems to lead people to hold back less than they would in a letter to the editor.” Yet he didn’t think that the ruling would change people’s behaviour.
Even if the court had ordered SF to provide the IP address, it would not necessarily have led to the blogger’s true identity: there are plenty of opportunities to post comments via shared and public internet connections.
Switzerland is not the only country coping with the issue of online defamation.
Britain has strict online defamation laws; its High Court can order both internet service providers and publishers to disclose the identity of anonymous bloggers. However, there has been talk of reforming the laws.
In Ireland in 2006, the High Court refused to order the disclosure of the identities of Ryanair pilots who had posted comments on a union website.
In the United States, where there is no national shield law for press sources, there have been a number of cases.
In 2009, an Illinois newspaper had to provide information on five people who had commented on a story about the arrest of a suspected murderer.
Online comment makers in Montana were forced to testify in a double homicide case in 2010.
Meanwhile, judges in states such as Florida and Texas have ruled to protect the identities of anonymous blog contributors.