Switzerland Media Law Guide

SWITZERLAND MEDIA LAW GUIDE

Defamation and Privacy Law in Switzerland

Contributor: Corinne Corminboeuf Harari (Partner, Harari Avocats)

Constitutional law (Swiss Federal Constitution)

In the Swiss Constitution, privacy is protected by art. 13 I, according to which “every person has the right to privacy in their private and family life and in their home, and in relation to their mail and telecommunications.” Personal Data are protected by art. 13 II, which provides that “every person has the right to be protected against the misuse of their personal data.”

Parallel to that, freedom of the press, radio and television and of other forms of dissemination of features and information by means of public telecommunications is guaranteed by art. 17, which also covers the protection of their sources.

However, all those rights are not absolute guarantees. According to art. 36, restrictions are possible, subject to the existence of public interest, a specific legal basis and the respect of the principle of proportionality. In that context, privacy and freedom of the press can come into conflict and require a necessary weighing up of the private and public interests in presence.

Under Swiss law, constitutional rights apply only in the relation between the State and the citizen (including private entities). Therefore, the above-mentioned provisions cannot be directly used in a complaint against another citizen or a private entity. In such a context, one has to apply the below-mentioned criminal and/or civil law provisions.

Criminal law (Swiss Penal Code and other laws)

The Swiss law of defamation and privacy is contained in the third part of the Swiss Penal Code, under the title “Offences against honour and against the secret or private domain”.

The law divides defamatory statements into three groups, namely:

(1) insult, provided for in art. 177

(2) defamation, provided for in art. 173

(3) slander, provided for in art. 174

In addition, Swiss criminal law protects Privacy and Personal Data through multiple provisions included both in the Swiss Penal Code and in other laws such as for instance the Swiss Bank Act of the Swiss Federal Data Protection Act.

Of particular relevance to the media law sphere are the provisions on observation with a camera, photography and filming (art. 179 quater).

(a) Defamatory statements

The Swiss criminal law code punishes insult, defamation and slander, which are treated as three different offences. For anyone to be charged with one of these offences, a formal complaint must be lodged by the victim. In cases where the defamation or slander is directed at a reported missing person or a deceased person, the right to lodge a complaint shifts to his/her next of kin (art. 175).

According to art. 31, the complaint must be made within three months of the date on which the victim becomes aware of the identity of the offender. In addition, a limitation period of four years from the date of the offence applies (art. 178 § 1). Finally, the next of kin of a reported missing person or a deceased person may only lodge a complaint on behalf of the missing or deceased person within 30 years of a victim’s disappearance or death (art. 175 § 2).

Swiss law draws no distinction between written and oral publications. Art. 176 provides that defamation and verbal slander are to include defamation and slander by writing, gesture, pictures or any other means.

Individuals working in the media sphere, including news publications, do not benefit from specific exemption in that context. They can be prosecuted in the same way as any other citizen if they commit one of those offences (see art. 28 and 322 bis). The only specific protection relates to the protection of sources of periodicals: except in specific circumstances, the professionals who are involved in the publication of information in the editorial section of a periodical medium or their auxiliary personnel may refuse to give evidence as to the identity of the author or as to the content and sources of their information (art. 28a).

i. Insult

Insult is committed by anyone who, in any way, attacks the honour of someone in the presence of the insulted person (art. 177 § 1).

The maximum sentence is a pecuniary sanction or imprisonment for a maximum of 90 days.

The judge can exempt the author from all punishment:

(a) if the injured party has directly provoked the insult by reprehensible conduct (art. 177 § 2); or
(b) if the injured party immediately replied by counter-insult or assault (art. 177 § 3).

ii. Defamation

Defamation is committed by anyone who, when speaking to a third party, accuses the aggrieved party (or casts upon him/her suspicion) of behaving in a manner contrary to his/her honour or by some other means casts a slur upon his/her reputation (art. 173 § 1).

The author may be punished by a pecuniary sanction or imprisonment for a maximum of 180 days.

The judge may exempt the author from all punishment if the latter can prove that his allegations are true or that he believed them to be true in good faith. This, however, will not be possible when the allegations were made regardless of whether or not they were in the public interest or where the only motive was to defame the injured party, which would be deemed to be the case when the facts in question related only to private or family life (art. 173 § 2 and 3). The issue of public interest is of course of major significance in case of Defamation through media supports.

If the author recognises the falsity of his allegations and retracts them, the judge may reduce the punishment or exempt him/her from all punishment (art. 173 § 4).

iii. Slander

Slander differs from defamation mainly insofar as it is committed by a person who makes the defamatory allegations knowing their falsity (art. 174 § 1). Therefore, the distinction between libel and slander under Swiss law is different from that in other jurisdictions including England and other common law jurisdictions.

The author of a slander may be punished by a fine or imprisonment for a maximum period of three years.

Such punishment involves a pecuniary sanction or imprisonment for at least 30 days if the author has deliberately attempted to ruin the reputation of the victim.

In the same way as in the case of defamation, the author may recognise the falsity of his allegations and retract them before the judge and may, as a consequence, obtain a reduction of the penalty.

In addition, art. 303 prohibits acts of “slanderous denunciation”, i.e. any behaviour intended to instigate criminal proceedings against a person who the author knows to be innocent of the allegations in question. The author may be punished by a fine or imprisonment.

(b)  Privacy and Data Protection provisions

i.  In General

Among the numerous Swiss law criminal provisions protecting the right to privacy and personal data, we can distinguish between:

• offences that are prosecuted automatically by criminal authority, such as breaches of certain Professional Secrecy (see in particular art. 320, 321, 321 bis and 321 ter; art. 47 of the Swiss Bank Act), for which the statute of limitation is ten years
• from other offences protecting the right to privacy and personal data. These include the unauthorised opening of packets or envelopes (art. 179), tapping and recording of conversations (art. 179bis and 179 ter), abusive use of a telecommunications system in order to harass someone (art. 179 septies) violation of the confidentiality, removal of personal data (art. 179 novies) or disclosure of confidential, sensitive personal data or personality profiles (art. 35 of the Swiss Federal Data Protection Act). For these offences, according to art. 31, a formal complaint must be made within three months of the date on which the victim becomes aware of the identity of the offender. In addition, a limitation period of three years (for violation of private secrets and abusive use of a telecommunication) to seven years (for the other offences) applies to those offences.

ii. Observation with a camera, photography and filming

Art. 179 quater prohibits the observation with a camera as well as the taking of photography or the filming of any fact related to the so-called “secret area” of a person or any situation related to his/her private life that cannot be easily seen by anyone.

The author may be punished by a fine or imprisonment for a maximum period of three years.

Under art. 179 quarter, the keeping of any pictures obtained through such an offence and their communication to anyone else is also prohibited, as is the mere disclosure or taking advantage of a fact learned through an offence.

By “secret area”, the legislator had in mind any fact known only by a restricted number of persons and that the person wants legitimately to keep confidential.

The notion of private life is broader than the notion of secret area but is restricted in the context of art. 179 quater through the wording “that cannot have been seen by anyone”. Whether facts related to the private life that take place in public fall or not under art. 179 quater is an issue disputed by the scholars. The answer is probably in the negative.

It must be underlined that the mere observation of a person with other material than a camera (for instance binoculars or telescope) is not punished.

The observation, photography and filming of matters related to the secret or private area of a person by the authorities within the context of criminal or administrative proceedings are exempt from punishment provided that certain requirements established under law to authorise such activities are fulfilled (art. 179 octies).

Civil law

(a)  Art. 28 and ff of the Swiss Civil Code

According to art. 28 and ff of the Swiss Civil Code, anyone who is subject to an unlawful attack on his/her personality may file a judicial complaint for his/her protection.

Any attack on the personality is deemed to be unlawful according to those provisions unless it is justified by the consent of the victim, a predominant private or public interest or other recognised legal obligation.

Art. 28 and ff are the legal base for any civil actions aiming at stopping violations of personality rights, such as for example, respect for privacy, honour, bodily integrity, freedom of movement, protection of name and personal data, etc.

The filing of the judicial complaint may lead to:

• the prohibition of the attack, if it is imminent
• the cessation of the behaviour complained of, if the conduct is ongoing in nature; or
• the ruling on the unlawfulness of such behaviour, if its consequences are ongoing

In particular, the claimant may request (1) the publication or the communication to third parties of a rectification of facts or the judgment in the claimant’s favour, (2) the payment of damages and/or an indemnity for the tort committed, and/or (3) the remittance of the profits realised through the unlawful behaviour. There is no maximum level of financial compensation, the payment of damages being calculated in each case on the base of the damage actually suffered by the plaintiff. However, indemnities for the tort committed granted by the Swiss courts are rather symbolic, involving de facto very small amounts of compensation.

Art. 28 and ff also enables the judge to order temporary or provisional judicial measures.

In addition, art. 28g and ff provide for a “right of reply” for any person “touched in their personality” through periodicals (such as newspapers, TV, radio). Such right may be exercised without the intermediary of the court (unless the media refuses to publish the reply). The right of reply allows the affected person to make his or her own version of the facts. The answer must be a concise text, limited to the subject matter of the contested presentation. The reply must be sent to the media within twenty days of receipt of the disputed presentation, but at the latest within three months of its distribution.

(b) Swiss federal Data Protection Act

The Swiss federal Data Protection Act extends the protection of private persons provided by art. 28 and ff. of the Swiss Civil Code and regulates in a more detailed manner the processing of personal data by civil persons or entities and by federal authorities.

The law covers data relating to both private and legal persons and applies to electronic data processing as well as manual files (art. 2, art. 3 para. a). The Act regulates the right of access (art. 8) and the right to modify incorrect data (art. 5). The transfer of data abroad is not permitted if adequate data protection cannot be ensured (art. 6 para. 1). Sensitive data – i.e. relating to religion, political beliefs, trade union activities, health, race, social assistance or criminal records – enjoy more effective protection in various respects.

The content of the Swiss federal Data Protection Act is currently discussed in the Swiss Parliament in order to adapt it to the requirements of the EU General Data Protection Regulation (GDPR).

Contributor: Corinne Corminboeuf Harari (Partner)

HARARI Associés
100 rue du Rhône
1204 Genève
Switzerland

The material in this Guide is for general information only and does not constitute legal advice.