The issue of awarding damages in cases of media reports that infringe personal rights raises not only theoretical but also very practical questions: can a sum of money actually be determined on the basis of such an infringement, to be paid to the person concerned? The decision of the Zug Cantonal Court of 22 January 2025 provides a remarkable answer to this question, but it remains to be seen whether a settled line of reasoning for future cases can already be derived from it.
This article examines the decision of the Zug Cantonal Court of 22 January 2025 and its potential signal effect, despite the fact that it is not yet legally binding. Jolanda Spiess-Hegglin brought an action against Ringier AG seeking the payment of profits from various articles that infringed her personality rights in connection with the Zug Landammann celebration on 20 December 2014.
Protection of personality rights Art. 28 Abs. 1 ZGB
If a person’s personality rights are violated, they can defend themselves on the basis of Art. 28 Abs. 1 ZGB. This protection applies to any person or company that contributes to the violation through publication, distribution or technical support.
Not every infringement of personality rights is automatically unlawful. According to Art. 28 para. 2 of the Swiss Civil Code, an infringement of personality rights is only considered unlawful if there are no grounds for justification. Such grounds for justification include, in particular:
- consent of the subject.
- overriding private interest.
- overriding public interest.
Media’s duty to inform
The media fulfil an important informational role as ‘guardians of democracy’, but this does not justify every violation of personal rights. Reporting must be supported by compelling reasons and remains bound by strict guidelines.
The media may disseminate true facts, provided that these can be proven by means of evidence. In addition, there must be a significant public interest in the information. However, even true facts are not covered if they are unnecessarily hurtful or originate from the private or secret sphere.
The media are free to express reasonable value judgements. However, these must not be unobjective or offensive. Objective and well-founded expressions of opinion remain permissible as long as they are not primarily defamatory.
Special considerations for public figures
A different standard applies to public figures than to ordinary citizens. Their protected private sphere is narrower because there is a legitimate public interest in information. According to Federal Supreme Court case law, reporting is only permissible to the extent that it is justified by the need for information. The protection of privacy is therefore also upheld in the case of public figures.
Unlawful infringement of personality rights
In the event of unlawful violations of personal rights, Article 28a ZGB provides the affected person with various legal remedies. These include, in particular, injunctive relief, removal and declaratory relief, as well as – depending on the circumstances – claims for damages, compensation and surrender of profits.
Distribution of profits Art. 28a Abs. 3 ZGB
If a violation of personality rights results in a profit, the injured party may demand that this profit be paid in full. The aim is to ensure that the profit does not accrue to the infringer, but is paid to the injured party.
Requirements for the claim for distribution of profits
Two conditions must be cumulatively fulfilled for the distribution of profits.
- A demonstrable profit made by the infringer.
- A causal link between the infringement of personality rights and the profit.
According to federal court rulings, it is sufficient for the causal link to be established if the article enables the existing readership to be retained. An increase in readership therefore does not have to be proven.
Judgment of the Cantonal Court of Zug dated 22. January 2025
The Cantonal Court of Zug ordered Ringier AG to pay Ms Jolanda Spiess-Hegglin CHF 309,531.00 plus 5% interest. The court largely agreed with Ms Jolanda Speiss-Hegglin, who had demanded a profit distribution of CHF 430,000.00.
The cantonal court’s ruling is not yet final and has been appealed by Ringier AG to the High Court of the Canton of Zug.
Profit calculation for media articles in infringement of personality rights
The ruling follows an earlier ruling by the Zug Cantonal Court in 2022, in which Ringier AG was ordered to disclose information relating to four articles that violated personal rights. The disclosure obligation included:
- Number of subscribers and sales of issues.
- Website visits.
- Average number of advertisements displayed per article.
Based on this information, the court calculated the amount to be over CHF 309,531.00 (for the exact calculation, see A1 2020 56 dated 22 January 2025).
Impact of the decision on future reporting?
Despite not yet being legally binding, the ruling sends a strong signal. This is the first time that a court in Switzerland has ordered a media company to surrender profits from unlawful violations of personal rights – including a specific calculation and quantification.
In future, media companies will have to ask themselves whether borderline reporting is economically viable. Serious violations of personal rights can be expensive if courts order the surrender of profits. The ruling enforces the principle that ‘wrongdoing must not pay’.
