The protection of privacy in civil and criminal law is constantly evolving – increasingly also in the context of digital media, social media and media reporting. The latest Federal Supreme Court rulings clearly show that neither traditional nor digital defamation are a legal vacuum; differentiated protection mechanisms apply at several levels.

Civil law protection of personality rights

In Swiss Civil Law, the protection of personality rights is established in Art. 28 et seq. of the Swiss Civil Code (ZGB) and protects physical, psychological and social aspects such as honour, reputation and privacy. Violations by the media, social media or digital platforms are often the subject of civil proceedings. A violation is considered unlawful if it is not justified by consent, higher interests or law. In the event of an unlawful violation of personality rights, the following claims are available:

• Omission of future infringements (e.g. prohibition of publications in the media or social media)
• Removal of violations that have already occurred (e.g. deletion of posts)
• Establishment of unlawfulness (by court decision)
• Determination of unlawfulness (by court decision)
• Compensation and satisfaction for non-material damage
• Right of reply in traditional and digital media

The Federal Supreme Court always emphasises the careful balancing of interests between the protection of personality rights and the fundamental rights of freedom of expression and freedom of the media – especially in the case of public criticism on the internet and in the press.

Criminal law protection of personality rights

Criminal law applies in cases of more serious infringements, such as defamation (Art. 173 SCC), willful defamation (Art. 174 SCC) or insult (Art. 177 SCC). Criminal law instruments are being used with increasing frequency, particularly in the digital sphere – for example, in cases of damage to reputation on social media.

• Defamation (Art. 173 SCC): Anyone who accuses someone of dishonourable or reprehensible behaviour to third parties can be prosecuted if the statement is not proven or justified. A criminal offence is therefore committed when someone spreads false facts about another person that damage their reputation. In such cases, the public prosecutor’s office may issue a criminal order.
• 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.
• Insult (Art. 177 SCC): Anyone who attacks another person’s honour in any other way, whether through words, writing, images, gestures or physical violence, may be prosecuted upon request. As a rule, this applies unless the victim’s own inappropriate behaviour directly provoked the insult.

Criminal prosecution protects the right to honour and reputation and also includes protection against damage to reputation in public and media reporting. Criminal proceedings are often initiated by private prosecution, but can also be conducted ex officio in cases of particular public interest. So-called private secrets, such as intimate photos or private messages, are particularly vulnerable to protection – however, the Federal Supreme Court has clarified that this protection is not absolute, but must always be weighed against the interests of criminal prosecution.

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

Digital and media aspects of personality rights protection

With digitalisation, new aspects are also gaining in importance:

• Users of digital platforms today can have their personality rights infringed upon particularly quickly and extensively – both by journalistic media and by private individuals via social media.
• The right to be forgotten, claims for deletion and the surrender of profits in media campaigns (as in the Spiess-Hegglin case) are being discussed in depth both in case law and in literature.
• The requirements for evidence, deletion or injunctions are particularly high in the digital environment, as content spreads quickly and cannot always be completely removed from the internet.

Recommendations for action in cases of damage to reputation, defamation and media coverage – Effective protection of personal rights

The protection of personal rights functions in many ways, but primarily at the initiative of the person concerned. This means that anyone who feels offended by a behaviour, a publication or a contribution should take immediate action in order not to forfeit their legal rights under civil or criminal law. The following recommended actions therefore arise:

1. Those affected by defamatory statements or media contributions should promptly check whether there is a justifiable reason and, if not, consider seeking legal assistance for civil and criminal proceedings.
2. 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 privacy) – courts often weigh up the public interest against the rights of the individual.

The legal instruments are available – whether in civil or criminal law – but require a thorough examination of the facts and a constant balancing of the protection of privacy and freedom of expression. Decisions on social media, the media and similar issues are therefore rapidly setting new standards in the protection of privacy. As a specialist law firm, we offer expert support in dealing with such complex cases and ensure that your rights and interests are protected in an objective and efficient manner.

Please feel free to contact us with any questions you may have regarding privacy protection.