Is it the one who shouts loudest who wins?

I know a politician who has a sharp tongue before an election. He thinks he can say whatever he wants without limit. His favourite saying is: «I say out loud what people are thinking». In my opinion, his words go too far. Can he really express himself with impunity? M., Vernier

Freedom of expression?

Yes, but not without restraint. Although freedom of expression is particularly broad for political figures, there are limits as soon as it encroaches on the fundamental rights of others, in particular honour.

In Switzerland, elected representatives and candidates in political elections enjoy a wide margin of manoeuvre when it comes to expressing their views, under Articles 16 and 17 of the Federal Constitution and Article 10 of the European Convention on Human Rights. They can therefore be virulent, provocative and even biting in their criticism. This greater freedom is essential to democratic debate, especially during election periods. The case law of the Swiss Federal Supreme Court expressly recognises this: those who enter the political arena voluntarily expose themselves to harsher criticism than ordinary citizens, and must show greater tolerance.

However, this freedom is not absolute. Even a politician must respect the limits set by criminal law, in particular the prohibition on defamation, slander or insult laid down in articles 173 to 177 of the Swiss Criminal Code. If a politician's comments are no longer aimed at ideas, but at damaging a person's reputation by publicly denigrating them without foundation, this falls outside the protected framework of political debate.

Dishonourable intentions?

In an emblematic ruling, the Federal Supreme Court pointed out that while a politician may be strongly criticised, this does not authorise anyone to attribute dishonourable intentions to him or her or to accuse him or her of immoral behaviour without proof. Another more recent ruling confirms that freedom of expression does not cover defamatory personal attacks, even under the guise of humour or satire, when their purpose is to humiliate or discredit a political opponent by demeaning him or her as a person.

In other words, saying out loud what «everyone else is thinking» does not exempt you from respecting the rules of the game. Politicians can shock, but they cannot defame. They can denounce, but not slander. And above all, they cannot hide behind their hat as an elected representative to spread serious accusations without proof.

Political speech is free, but it remains responsible. Democracy accepts sharp criticism, not gratuitous contempt.

Read Pascal Rytz's columns on www.tdg.ch