Data protection law protects individuals – but not every individual who invokes data protection law. The ECJ has made it clear: anyone who does not use the right of access to monitor their own data, but instead deliberately uses it as a lever to pursue claims for damages, forfeits that protection. 

CJEU JUDGMENT (Brillen Rottler) C-526/24 OF 19 MARCH 2026 

Facts of the case 

In March 2023, TC subscribed to the newsletter of a German optician (Brillen Rottler). Just 13 days later, he submitted a request for access under Article 15 of the GDPR. The company refused to provide the information, citing publicly available information purportedly demonstrating a systematic approach on the part of TC: signing up for services -> request for information -> claim for damages. TC brought an action seeking payment of at least EUR 1,000 in compensation. 

Key Holdings 

• Even a first request for information may be deemed “excessive”: Article 12(5) GDPR permits refusal not only in the case of repeated requests, but also in respect of a single initial request, provided that an abusive intent can be established. What matters is not the frequency of requests, but the intent of the applicant.  

• Burden of proof lies with the controller: If the company wishes to reject a request for information on the grounds that it is abusive, it bears the full burden of proof – and this is a two-stage process. First, it must objectively demonstrate that, despite being formally correct, the request does not serve the actual purpose of the right to information, namely the monitoring and verification of its own data processing. It must then subjectively prove that the applicant intended from the outset to artificially create the conditions for a claim for damages. 

• Public sources as evidence: The company may use publicly available information (e.g. media reports, blog posts about known ‘data protection trolls’) to support its case, provided such information is corroborated by further evidence.   

• Compensation even without unlawful data processing: Article 82(1) of the GDPR grants a right to compensation not only in the event of unlawful data processing, but also in the event of a mere breach of the right of access under Article 15 of the GDPR. The infringement of procedural rights in itself gives rise to liability. 

• Non-material damage – not automatic: The loss of control over data or uncertainty regarding its processing may constitute non-material damage. However, compensation is not payable if the causal link is broken by the data subject’s own conduct – in particular, if they have deliberately provoked the breachin order to generate a claim.   

SCOPE OF THE RIGHT OF ACCESS (Art. 15 GDPR) – WHAT IS COVERED, WHAT IS NOT? 

Covered by the right of access (Art. 15 GDPR) 

• The right to know whether personal data is being processed at all.   

• Where data is being processed: information regarding the data itself, the purposes of processing, categories of data, recipients, retention period, the origin of the data, and any automated decision-making. 

• The right to exercise access free of charge and, as a rule, within one month. 

• Compensation for non-material damage resulting from the infringement of the right of access (including loss of control and uncertainty regarding processing) 

Not covered by the right of access or not worthy of protection 

• Requests for information that do not serve the purpose of monitoring one’s own data processing, but are made abusively to obtain compensation. 

• Compensation where the data subject has caused the damage (e.g. loss of control) through their own abusive conduct – the causal link is broken.   

• Compensation without proof of actual damage incurred – no automatic entitlement arising from the mere infringement. 

CONSEQUENCES FOR SWITZERLAND AND ITS JUDICIAL PRACTICE 

Relevance for Switzerland 

Although the GDPR does not apply directly in Switzerland, the revised Data Protection Act (FADP, in force since 1 September 2023) is closely aligned with European requirements. Swiss courts regularly refer to the GDPR and ECJ case law as an aid to interpretation for the EU-compatible application of the FADP.   

Strengthening of the prohibition of abuse of rights (Art. 2 of the Swiss Civil Code) 

The judgment confirms and reinforces the application of Art. 2(2) of the Swiss Civil Code (“The manifest abuse of a right shall not be protected by law”) in data protection law. Swiss courts are likely to adopt the logic of the ECJ: it is not the number of requests, but the improper intention that is decisive.  

Art. 26(1)(c) FADP permits the refusal of access in the case of ‘manifestly vexatious’ requests or those with a purpose contrary to data protection. The ECJ judgment provides valuable criteria for the practical application of this provision. 

Key difference: Higher threshold for compensation (Art. 32(3) FADP) 

Whilst the ECJ recognises the loss of control as a potentially compensable non-pecuniary loss, Art. 32(3) FADP requires a serious infringement of personal rights for a claim for compensation. The mere refusal to provide information or the associated uncertainty is unlikely to meet this threshold in Switzerland in most cases. 

This represents a significantly higher hurdle for ‘data protection trolls’ in Switzerland than under EU law and is likely to render the business model of systematic requests for information for the purpose of obtaining damages largely unattractive in Switzerland. 

Consistency regarding the causal link   

The ECJ’s comments on the interruption of the causal link by the conduct of the person concerned are fully consistent with the principles of Swiss tort law (contributory negligence). Anyone who deliberately provokes a breach forfeits their claim.   

CONSEQUENCES FOR BUSINESSES 

The judgment is not a free pass to reject requests for information across the board – the burden of proof for misuse lies entirely with the company. Incorrect or delayed information opens the door to claims for damages – regardless of whether the request was made in good faith or abusively.    

For Swiss companies, there is the additional factor that the revised FADP has imposed comparable disclosure obligations since September 2023. Whilst the threshold for claims for compensation is higher than under EU law, this does not relieve companies of the obligation to provide timely and complete information. 

In practical terms, it is therefore advisable to streamline information processes and assign responsibilities clearly within the organisation, to formulate responses in a comprehensible manner rather than simply providing raw data, and to structure data management in such a way that information can be provided quickly and in full. 

CONCLUSION 

With its ruling, the ECJ has drawn an important line against the abuse of the right of access under data protection law: anyone who requests information under Article 15 of the GDPR not to monitor their own data processing, but specifically to construct claims for damages, is acting abusively – and forfeits both the right to access and the right to compensation. ForSwitzerland, the ruling confirms the application of the prohibition of abuse of rights (Art. 2 of the Swiss Civil Code) in data protection law. At the same time, the Swiss Data Protection Act (FADP) sets the bar even higher than EU law by requiring a serious infringement of personal rights for claims for compensation, which makes the business model of “data protection trolls” unattractive.    

Smartphones are now often the central evidence hub in criminal proceedings. Almost everyone carries one, which makes them one of the most important data carriers for investigators. That is precisely why access to them must never become a legal vacuum; an effective sealing procedure upon seizure is needed as a safeguard for privacy, personality rights, and professional secrecy.

Law enforcement is under pressure to review digital evidence quickly, while affected individuals often can only challenge a search with a significant delay. That tension is exactly what makes sealing so essential.

Why this issue matters now

Recent media reporting points to a marked rise in sealing-related proceedings involving smartphones; in Zurich alone, the number is said to have increased by 75 percent. At the same time, the federal authorities are working on more efficient procedures for securing electronic evidence while expressly emphasizing data protection and procedural rights.

This shows two things: digital evidence has become indispensable for criminal prosecutors, but the rule-of-law safeguards must operate with equal seriousness. If sealing and unsealing are not handled promptly and carefully, irreparable intrusions into highly sensitive personal data can follow.

The role of sealing

Sealing is not a technical footnote; it is a core procedural safeguard for sensitive information upon seizure. Anyone whose devices or documents are seized and who invokes confidentiality interests can request that the contents remain sealed until a court decides whether inspection is allowed.

This is especially important for smartphones, because they often contain an exceptionally broad digital footprint: chats, photos, health data, location history, work documents, and private communications. A search therefore almost inevitably interferes with privacy and must be justified with particular care.

What the court must assess

In unsealing proceedings, the question is not simply whether the public prosecutor would like to review the data. The compulsory measures court must also determine whether there is sufficient suspicion of an offence and whether the search is proportionate.

This review is crucial in digital cases because the interference is so far-reaching. Authorities must not access an entire device on a blanket basis if the relevant information can already be narrowed down more precisely, or if protected secrets outweigh the investigative interest.

Current developments and practical problems

The current debate around digital evidence reveals a structural problem: proceedings often take too long, even though digital data can quickly lose evidentiary value or appear in massive volumes. At the same time, the affected person’s duty to cooperate is sometimes applied too strictly in practice, although the Federal Supreme Court has stressed in relevant cases that substantiated disclosures can be sufficient.

Added to this is the new statutory three-day deadline for filing a sealing request after seizure, which has been described in legal commentary as a significant tightening and a potential trap. Missing that deadline, or failing to justify the request properly, can mean the irreversible loss of protection.

Why this matters for personality rights

The right to sealing protects not only lawyers, journalists, and other holders of professional secrecy, but ultimately every person whose most intimate life domains are stored on a device. A smartphone search often provides a comprehensive view of someone’s digital life, far beyond what is relevant to the criminal proceedings.

For that reason, the rule of law must not weaken the sealing mechanism simply because some courts have not yet fully adapted to the pace of technological change. The correct response is not less legal protection, but more precise procedures, faster judicial review, and stricter reasoning requirements for any intrusion.

Conclusion

In digital criminal proceedings, sealing is not a luxury; it is a rule-of-law necessity. Especially with smartphones and other data carriers, it determines whether privacy remains effectively protected or whether sensitive data are disclosed too early.

Anyone who wants to make searches of digital devices easier must not gradually dismantle the protection of affected persons. A functioning sealing procedure is the condition for keeping criminal prosecution, personality rights, and privacy in fair balance.

Decision 2C_47/2025 of 27 March 2026 – Labelling of vegan products

The Federal Supreme Court has ruled that the term ‘milk’ may not be used in connection with vegan drinks – not even in a modified or ironic form. In the case of an oat drink bearing the label ‘SHHH… THIS IS NOT M[*]LK’, the Federal Supreme Court upheld the ban imposed by the Zurich Cantonal Laboratory. Even the stylised spelling, with a drop symbol in place of the ‘i’, is sufficient to give the impression of a reference to milk.

The court based its decision on its 2025 case law (decision 2C_26/2023), according to which terms such as ‘milk’, ‘cream’ or ‘yoghurt’ are protected designations for animal products under the Federal Act

on Foodstuffs and Consumer Products (Foodstuffs Act, FSA) and the Foodstuffs Ordinances. Such terms may only be used for products that are actually made from milk of animal origin.

Focus on differentiation and consumer protection

The Federal Supreme Court emphasises that the term ‘milk’ raises clear expectations among consumers – particularly with regard to nutritional value, composition and origin. A ‘negative claim’ (‘this is not milk’) does not alter this, because the connection to real milk is deliberately established. The decision provides legal certainty for manufacturers, inspectors and consumers and sends a further signal in favour of transparent labelling in the growing market for vegan alternatives.

Administrative procedures for the placing of foodstuffs on the market

The authorisation and supervision of foodstuffs in Switzerland is governed by the Ordinance on Foodstuffs and Consumer Goods (LGV; SR 817.02). The Federal Food Safety and Veterinary Office (BLV) is responsible for coordinating enforcement, whilst the cantons (e.g. the Zurich Cantonal Laboratory) carry out enforcement.

Anyone wishing to place a food product on the market must, in particular, ensure:

• that the labelling and advertising are not misleading (Art. 12 LGV),
• that no protected descriptions are misused (Art. 14 LGV),
• and that the product is safe for human health (Art. 8 ff. LGV).

Special provisions apply to so-called ‘novel foods’. Breaches result in a ban on placing the product on the market, as in the present case, sometimes accompanied by administrative proceedings up to the Federal Supreme Court.

International trend towards clear labelling

The Federal Supreme Court’s ruling is part of a European and international trend calling for a clear linguistic distinction between animal-based and plant-based foods. In the European Union, the term ‘milk’ is reserved exclusively for animal products under EU Regulation No 1308/2013. The same applies to terms such as ‘cheese’ or ‘butter’.

The European Commission and national authorities – such as the Federal Ministry of Food and Agriculture (BMEL) in Germany – emphasise the importance of uniform and transparent product labelling so as not to mislead consumers. The recent EU dispute over the terms ‘veggie burger’ or ‘veggie schnitzel’ shows that whilst legislators are granting more leeway for plant-based products, they are simultaneously drawing clear boundaries as soon as protected terms such as ‘milk’ are involved.

Switzerland – albeit as a non-EU member – thus follows a similar line to the EU: Consumer protection and legal certainty take precedence over creative wordplay in marketing.

Conclusion

The new ruling makes it clear: creativity in the marketing of vegan products has legal limits. Anyone selling plant-based alternatives must adhere to the labelling rules of food law – even if playful wordplay appears attractive from a marketing perspective.

To work as a doctor in Switzerland and be able to invoice services covered by mandatory health insurance (OKP), one needs more than just a federal degree. The Federal Law on Health Insurance (KVG), specifically Articles 36 and 37, governs the professional and administrative licensing requirements at the federal level. In addition, cantonal authorizations are required, such as those in the Canton of Lucerne.

Overview of General Admission Requirements

According to Article 36 KVG, physicians may only provide services covered by the OKP if they:

• hold a Swiss federal diploma or an equivalent foreign diploma recognized in Switzerland,
• have completed the necessary continuing medical education and hold the corresponding specialist title,
• hold a license to practice independently from the relevant canton (e.g., Lucerne), and
• are registered in the cantonal registry of healthcare providers.

For foreign diplomas, confirmation of recognition by MEBEKO is also required so that the degree is recognized as equivalent in Switzerland. In the Canton of Lucerne, this license to practice is issued by the Department of Health and Sport (DIGE). The required form, “Gesuch um Erteilung einer Bewilligung zur fachlich eigenverantwortlichen Berufsausübung und um Zulassung zur Tätigkeit zulasten der OKP” (Application for a License to Practice Independently and for Authorization to Provide Services Covered by Compulsory Health Insurance) is available online at gesundheit.lu.ch/bewilligungen. Once cantonal authorization has been granted, a ZSR number is required for billing health insurers; this number serves as a unique identifier for the service provider.

Admission restrictions under Art. 37 of the Health Insurance Act

Under Article 37 KVG, the federal government may require the cantons to introduce additional conditions for the licensing of physicians. These include, in particular, requirements regarding:

• a minimum period of practice at a recognized Swiss training facility (three years),
• proof of sufficient proficiency in the national language of the canton of practice, and
• participation in a quality assurance system.

These requirements were tightened with the 2022 revision of the KVG to better control the number of licensed physicians and ensure the quality of medical care.

Key Issues and Current Developments

Since the amendment to the KVG on June 19, 2020, two points have become particularly relevant in practice:

Three years of practice at a recognized Swiss training institution

Only those who have worked for at least three years at a Swiss training institution in the requested specialty during the three years prior to submitting the application may be admitted. This rule is intended to ensure that physicians are familiar with the Swiss healthcare system. The Canton of Lucerne strictly applies these provisions as part of its licensing procedures.

General practitioners and Regional Underservice

A key issue in recent years has been ensuring primary care by general practitioners, particularly in rural areas. The growing shortage of family physicians means that many cantons — including Lucerne — can make use of the exceptions provided for in the KVG in cases of underservice. The same applies to the specialties of pediatric and adolescent medicine as well as child and adolescent psychiatry and psychotherapy.

This increased flexibility is intended to prevent entire regions from being left without primary care — a problem that particularly affects smaller municipalities. At the same time, the cantons’ responsibility remains significant: they must ensure that such special licenses are granted in a targeted and transparent manner.

Demand-Based Licensing

Cantons may restrict licensing if regional care provision is already secured. This applies in particular to specialties with excess capacity. The Canton of Lucerne has exercised this authority through its cantonal licensing ordinance and has limited the maximum number of full-time equivalents in the specialty of angiology to 11.5.

Conclusion

For physicians, this means that in addition to a medical degree and board certification, domestic experience, language proficiency, and quality assurance are now also decisive factors for admission under the KVG. Anyone seeking to practice in Lucerne should carefully review the cantonal requirements and submit a complete application—this will help avoid delays and follow-up inquiries.

A remarkable piece of Swiss cinema: «The Narrative» tells a story that moves, surprises, and resonates.

We are proud to have made a small contribution to this major project as legal advisors – and would like to thank the entire production team for their trust and for the appreciative mention in the film and at the preview screening.

This is a film that you don’t just watch, you experience. We congratulate the entire team on this successful work and wish them every success for the theatrical release on March 12, 2026!

CSEM’s new research and development centre in Seewen strengthens Central Switzerland as a hub for innovation and technology and opens up attractive opportunities for cooperation and growth for companies in the region. The new location will focus on the areas of digitalisation, artificial intelligence and robotics.

Significance of CSEM Seewen for Central Switzerland as a centre of innovation

The expansion of research activities in Seewen brings cutting-edge technology closer to regionally based industrial and technology companies. This creates short distances for joint development projects, technology transfer and the commercialisation of new products.

New opportunities for technology-driven companies and SMEs in Central Switzerland

For innovative SMEs, scale-ups and industrial companies, physical proximity to a high-tech research centre provides access to expertise, infrastructure and support programmes. This makes it easier to bring new technologies to market more quickly and to consider regulatory requirements at an early stage.

Legal advice for technology companies and R&D collaborations in Central Switzerland

As a boutique law firm in Central Switzerland, we assist technology-driven companies in all legal matters relating to innovation – from R&D collaborations and IP strategy to data protection and regulation. We support you in exploiting opportunities arising from collaborations with research institutions in a legally compliant and economically sensible manner.

Contact us if you have any legal questions relating to research and development.

In its ruling of 6 October 2025, the Federal Administrative Court upheld the FDPIC’s decision on the ‘Pfarrer-Check’ database and clarified the application of the revised Data Protection Act (DPA) to publicly accessible personal data.

The decision provides important clarity for operators of online platforms, directories and campaign websites when dealing with personal data from the internet.

An overview of the Federal Administrative Court ruling A-2941/2024

In its ruling of 6 October 2025, A-2941/2024, the Federal Administrative Court upheld the decision of the Federal Data Protection and Information Commissioner (FDPIC) in the so-called ‘Pfarrer-Check’ case. In the court’s opinion, the public recording of over 6,000 church officials in an online database without their consent violates the revised Federal Act on Data Protection (FADP).

Facts of the ‘Pfarrer-Check’ case

The association ‘Bürgerforum Schweiz’ operated a publicly accessible database on its website containing personal data on over 6,000 individuals from the church community. The database contained names, places of residence and postcodes, employers or religious denominations, fields of activity, positions and a status (‘recorded’, “requested”, ‘responded’) in connection with a questionnaire on religious views.

According to the operator, the purpose of the database was to enable a distinction to be made between ‘genuine’ and ‘watered-down’ churches. In its ruling of 9 April 2025, the FDPIC ordered the deletion of the entries published without the consent of the persons concerned. The association lodged an appeal against this ruling, which the Federal Administrative Court did not admit.

Applicable law & procedure

The court first confirmed that the revised Federal Data Protection Act (FADP, in force since 1 September 2023) is applicable. The decisive factor is the date on which the formal investigation was opened; mere informal preliminary investigations and responses to enquiries do not constitute a pending investigation within the meaning of transitional law.

The complainant alleged that the lower court had violated her right to inspect the files by only making the reports available to her in anonymised form. However, the court considered the EDÖB’s action to be lawful: the public interest in effective data protection supervision outweighs the operator’s interest in the identity of the whistleblowers.

Key material points (data protection principles and justification)

Proportionality

In the court’s opinion, publishing the status ‘recorded’ or ‘requested’ was neither appropriate nor necessary to achieve the purpose stated by the association (distinguishing between “genuine” and ‘fake’ churches). The information that someone has received a questionnaire but has not answered it leaves room for interpretation without offering any objective added value for the purpose of data processing.

Limitation of Purpose

The individuals concerned had published their contact details on their institutions’ websites so that they could be contacted in connection with their professional activities. The mere fact that the data is publicly accessible does not mean that it may be used for any purpose, in particular for an evaluative campaign database. The court qualifies the use for the ‘Pfarrer-Check’ as a change of purpose that was not apparent to the persons concerned.

Transparency

The persons concerned must be actively and clearly informed about the actual data processing. This did not happen. In particular, the persons concerned were not sufficiently informed that their data would be published even if they did not complete the questionnaire. A mere reference to the operator’s website does not satisfy the transparency requirements of the DPA. Active, comprehensible information about the nature, purpose and scope of the data processing is required.

Justification

The court denies the existence of a justification within the meaning of Article 31 of the FADP. Neither was there valid consent, nor could the association invoke a legal basis or an overriding public interest. A self-defined ‘public interest’ without any basis in law or the constitution is not sufficient to justify serious violations of privacy.

The appeal to Article 31 para. 2 of the FADP (person of public interest) is also unsuccessful. In weighing up the interests, the court considers the status ‘requested’ to have a high potential for infringement because it allows negative speculation about the attitude and integrity of the person concerned, while the status ‘recorded’ only has a medium intensity.

The court therefore concludes that the complainant has unlawfully infringed the personality rights of the persons concerned.

Significance of the judgment in practice

Since the new FADP came into force, the FDPIC has already carried out numerous low-threshold interventions and issued more than 14 formal investigations in the form of rulings. Only four of these rulings have been challenged before the Federal Administrative Court to date. The decision thus shows that the courts fundamentally support the FDPIC’s approach and consistently enforce the basic principles of data protection law, even in the case of publicly accessible online data.

The decision sends a clear signal to operators of online databases, directories, campaign and rating platforms: even if data is publicly accessible, proportionality, purpose limitation, transparency and a viable obligation to justify remain central.

Our experts in data protection and ICT law assist organisations in the legally compliant design of online platforms, websites and projects under the revised DPA.
Get in touch with us for an initial consultation on matters of Data Protection.

Dear Partners and Clients

The year is approaching its end. We would like to thank you for the excellent cooperation this year and look forward to more pleasant encounters next year. We wish you a Merry Christmas, a relaxing winter break and a Happy New Year.

Our office will be closed from the afternoon of December 24, 2025 until and including January 2, 2025. We look forward to returning to work with renewed vigour on 5 January 2026. In urgent cases, please contact us at info@bps-legal.ch.

Under Swiss law, protection of privacy entails both civil and criminal law mechanisms to protect a person’s honour, reputation and integrity from unlawful attacks. The case involving the Swiss People’s Party (SVP) in Lucerne and former party member Yves Holenweger¹ illustrates how media reports can be legally relevant and what options those affected have to protect themselves.

Civil law protection of personality rights

Civil law provides comprehensive protection of personality rights in accordance with Art. 28 et seq. of the Swiss Civil Code. This protection covers physical and psychological aspects, as well as honour, privacy and economic reputation.

• A violation is considered unlawful if it is not justified by consent, higher interests or the law.
• Those affected may demand that the violation be stopped, remedied or determined by a court.
• Claims for damages, compensation or counterstatements are also often available, especially in the case of media publications.

In the case of media-effective criticism, as in the present case, the person concerned can, for example, demand a counterstatement or take legal action to prevent and remove a defamatory statement.

Criminal law protection of personal rights

Criminal law applies in cases of particularly serious violations of personal rights, such as defamation, slander or verbal abuse.

• Defamation (Art. 173 SCC): Anyone who accuses another person of dishonourable or reprehensible behaviour to third parties may be prosecuted if the statement is not proven or justified. A criminal offence is therefore committed when someone spreads false information about another person that damages their reputation. In such cases, the public prosecutor’s office may issue a penalty order, as was done in the case mentioned above.
• Willful Defamation (Art. 174 SCC): Anyone who, against their better judgement, accuses or suspects someone of dishonourable behaviour or spreads such accusations may be prosecuted if these accusations damage the person’s reputation. The deliberate dissemination of false facts that cast a person in a bad light is therefore punishable by law. This offence is more serious and can lead to higher penalties.
• Criminal prosecution protects the right to honour and reputation and also includes protection against damage to reputation in public and media reporting.
• Negligent or deliberate false statements are punishable by fines or even imprisonment.

Here too, the person affected can initiate civil proceedings in parallel in order to additionally mitigate the consequences of a criminal offence under civil law.

Effective protection of privacy: Legal action and recommended measures in cases of defamation, damage to reputation and media coverage

The example of the defamatory press release signed by Dieter Haller, then president of the Lucerne City SVP, and Timo Lichtsteiner, then and now vice-president, illustrates how personality rights protection works.

• Those affected by defamatory statements or media reports should promptly check whether there is a justifiable reason and, if not, consider seeking legal assistance for civil and criminal proceedings.
• Particularly in the case of political criticism or public reporting, it is essential to carefully weigh up the interests involved (freedom of expression vs. protection of personality rights) – courts often weigh up the public interest against the rights of the individual.

The Holenweger affair shows how personal attacks can quickly turn into a legal dispute over honour and personality rights. A specialised law firm offers competent support in dealing with such complex cases and ensures that the rights and interests of those affected are protected in an objective and efficient manner.

Find out more about the protection of personality rights in civil and criminal law here.

1. https://www.luzernerzeitung.ch/zentralschweiz/stadt-region-luzern/artikel-ld.4016595 last visited on 23 September, 2025. ↩︎

In its ruling, the court refuses to unseal seized data carriers and documents belonging to a journalist, thereby strengthening freedom of press. The current decision of the Zurich District Court of 2 July 2025 deals with the unsealing of seized data carriers and documents in the case of Inside Paradeplatz journalist Lukas Hässig, after the journalist correctly filed for sealing on the grounds of protecting his sources. The decision of the Compulsory Measures Court shows the conditions under which a request for unsealing is approved or, as in this case, not approved.

Facts and background of the Hässig case

The focus is on an investigative journalist, editor of the Inside Paradeplatz platform. He is accused of sharing information and data from Bank Julius Bär & Co. AG, which is subject to banking secrecy and/or trade secrets, in his magazine ‘Inside Paradeplatz’. In connection with the resumption of criminal proceedings against the respondent for an offence under Article 47 Banking Act, a search was carried out at his home and place of work. Various items and data carriers were seized. Referring to the protection of journalistic sources, the respondent requested that all seized items be sealed.

The public prosecutor’s office then filed a request for unsealing with the Compulsory Measures Court of the Zurich District Court. The respondent commented on the request for unsealing and requested that it be dismissed.

Note: The judgment shows that the criminal investigation by the public prosecutor’s office had already been suspended twice. In the most recent suspension order, the public prosecutor’s office itself had denied the admissibility of a search on the grounds of source protection, which the court took up in its judgment.

Legal requirements for unsealing

A request for sealing is used to assert permissible confidentiality interests pursuant to Article 248 para. 1 of the Swiss Criminal Procedure Code when searching records. Once the request for sealing has been filed, the criminal authority first seals the seized data carriers and documents. In the unsealing proceedings, the Compulsory Measures Court is then obliged to examine any objections to the admissibility of the search. A general decision must therefore be made as to whether the search is admissible.

A search of records within the meaning of Article 246 ff. Swiss Criminal Procedure Code, i.e. ‘documents, audio, video and other recordings, data carriers and equipment for processing and storing information’, is permissible if:

• The items are subject to a seizure (Art. 246 Swiss Criminal Procedure Code)
• There is sufficient suspicion of a crime (Art. 197 para. 1 lit. b Swiss Criminal Procedure Code)
• It is proportionate with regard to the constitutionally protected sphere of intimacy and privacy (Art. 197 para. 1 lit. c Swiss Criminal Procedure Code)

According to Article 246 of the Swiss Criminal Procedure Code, documents, audio, video and other recordings, data carriers and equipment for processing and storing information may only be searched if there is reason to suspect that information subject to seizure is contained in these items. According to Article 263 para. 1 of the Swiss Criminal Procedure Code, items and assets that are used as evidence (lit. a) are subject to seizure if they are needed to secure procedural costs, fines, penalties and compensation (lit. b), if they are to be returned to the injured party (lit. c), confiscated (lit. d) or used to cover claims for compensation by the state in accordance with Article 71 of the Swiss Criminal Code.

Unlike the court of law, the Compulsory Measures Court does not have to exhaustively weigh up all incriminating and exonerating evidence. What is required is a sufficiently concrete probability that the alleged offence was actually committed. According to the highest court ruling, reasonable suspicion can be equated with the concept of initial suspicion pursuant to Article 309 para. 1 lit. a of the Swiss Criminal Procedure Code.
Compared to pre-trial detention (Art. 224 ff. Swiss Criminal Procedure Code), the unsealing and searching of records appears to be significantly less intrusive. The requirements for reasonable suspicion are therefore less stringent. Reference can be made to substantiated criminal complaints or reports. The grounds for suspicion must be examined on the basis of the results of the investigation to date.

Furthermore, the Compulsory Measures Court must weigh up the interests involved and examine whether the house search and the search of the sealed data are proportionate to the constitutionally protected intimate and private sphere of the respondent.
The owner of the records or objects may request sealing if there are obstacles to seizure in accordance with Article 264 of the Swiss Criminal Procedure Code (Art. 248 Swiss Criminal Procedure Code). These obstacles to seizure also prevent the unsealing of previously sealed records and objects.

When assessing the proportionality of this compulsory measure, the severity of the offences under investigation is also taken into account (Art. 197 para. 1 lit. d Swiss Criminal Procedure Code).

Considerations of the coercive measures court in its ruling of 2 July 2025

No reasonable suspicion

The criminal investigation against the respondent has now been ongoing for six years. The investigation files do not indicate that the suspicion against the respondent has intensified in recent years or at least months. The Compulsory Measures Court finds that no suspicion against the respondent can be established, even to a minimal degree. Sufficient suspicion is denied.

Proportionality and source protection

The public prosecutor’s office argues that the respondent cannot invoke source protection under Art. 28a para. 1 of the Swiss Criminal Code and Art. 172 of the Swiss Criminal Procedure Code and thus a right to refuse to give evidence. The Compulsory Measures Court argues that the respondent acted in the interests of society and fulfilled his duty as an investigative journalist. It considers the priority given to criminal prosecution and possible punishment for a breach of banking secrecy over the legitimate right of the public to be informed about alleged far-reaching violations of the law in the financial sector to be manifestly wrong. According to the Compulsory Measures Court, the interest in prosecution in this case is not sufficiently weighty to outweigh the protection of sources. The proportionality of the search must also be denied.

Finally, the Compulsory Measures Court finds that the conditions for unsealing and searching the seized data carriers and documents are not met.

Significance for the media, lawyers and those affected

The ruling thus rightly emphasises the high hurdles for interference in journalistic work. Source protection enjoys strong protection in Switzerland, as it is enshrined in the Constitution and the ECHR. Finally, criminal proceedings such as the unsealing and searching of records require careful consideration of the interests involved – especially in the case of media professionals.

For affected journalists and media companies, this means that access to confidential data is only permitted in exceptional cases where there are concrete and serious grounds for suspicion of criminal activity.

Our law firm provides advice on criminal procedure law, media law, source protection and the enforcement of personal rights. Please feel free to contact us without obligation if you have any questions about criminal proceedings and the search of records.

FAQ Criminal proceedings and sealing:

1. How does the sealing of data carriers or documents occur in criminal proceedings?

Seized data carriers or documents are sealed if the person concerned claims that the contents of the records are subject to special protection, for example due to professional secrecy (e.g. protection of journalistic sources, lawyers, doctors). Sealed data may only be searched after a court decision has been made.

2. Under what conditions can a request for unsealing be successful?

To this end, the public prosecutor’s office submits a request for unsealing to the Compulsory Measures Court. Unsealing is possible if there is concrete and sufficient suspicion against the person concerned and the search appears proportionate to their fundamental rights. The Compulsory Measures Court always examines the proportionality and the suspicion.

3. What is the right to refuse to give evidence and who can invoke it?

The right to refuse to give evidence allows certain professional groups – e.g. lawyers, journalists, doctors – to refuse to testify and to keep their sources or client data confidential. This protection applies as long as they are not suspected of having committed serious crimes themselves.

The right to refuse to give evidence allows any person to refuse to testify during questioning for their own protection (Art. 169 Swiss Criminal Procedure Code) or to protect personal relationships such as their spouse or close relatives (Art. 168 Swiss Criminal Procedure Code). However, sealing is only protected under Art. 264 of the Swiss Criminal Procedure Code in cases of qualified confidentiality protection, e.g. items and documents from another person’s communications with their lawyer.

4. Is the protection of journalists’ sources also guaranteed in court?

Yes, journalists can invoke source protection. Courts and public prosecutors may only seize and unseal their data in exceptional cases – namely when there are clear indications of a criminal offence and public interests, namely in the criminal investigation, outweigh other considerations.

5. What can I do if I receive a summons to appear as a witness but wish to refuse to provide information?

You must attend the appointment, but you can exercise your right to refuse to give evidence if you are bound to secrecy as a relative or because of your profession. Inform the authorities of this in good time and seek legal advice if necessary.