Protection of sources

Crime films often depict journalists as instrumental in solving crimes. In reality, their co-operation with the police is often more laborious. The police and the agents of the public prosecutor’s office rely on their informants to discern the course of events. In contrast, journalists often claim their right to ‘source protection’ and purposefully hide their informants. Given the general discrepancy between film depictions and reality, the question arises as to what extent informants are protected under Swiss criminal law. If you have any questions about criminal law relating to the media, our lawyers for criminal law in St. Gallen, Zurich or Frauenfeld will be happy to help you.

At the heart of criminal media law is the journalist’s right to refuse to testify or give evidence as to the identity of their sources of information. This is limited to professional journalists who write for the editorial section of a periodical medium. Neither penalties nor coercive measures can be imposed in order to find the author or their sources of information. The main argument for this is the public interest in the democratic flow of information and ultimately, in the freedom of information. It is important, for controversial matters especially, to have the most comprehensive flow of information possible. This would be considerably restricted if whistleblowers feared judicial or social repression.

As the wording of Art. 28a CC infers, the protection of sources does not apply universally to all media professionals. The chosen medium must appear periodically, which generally means at least four times a year, or the information must relate to the editorial aspect of the medium. ‘Information’ in this sense, is to be understood broadly, not limited to political or economic topics, but also referring to facts and opinions. In addition to the requirements of source protection, the judge can grant further restrictions in certain cases. Thus, Art. 28a para. 2 CC contains an extensive catalog of circumstances which amount to serious crimes which constitute a restriction of this nature. However, in order for source protection to be lifted, the conflict of interest between the freedom of the press and the fight against crime must be evaluated. A judge may rightfully dissolve source protection in order to save a person from immediate danger to life or limb, if a serious crime cannot be investigated or if the accused cannot be apprehended.

All in all, source protection in Switzerland is much less comprehensive than is regularly portrayed in films. Whether the protection of sources ultimately applies, however, is determined on a case-by-case basis. If you are unsure, please contact one of our attorneys specializing in criminal law in Zurich, St. Gallen or Frauenfeld.