Author: Lawyer Enrico Gemano
Pursuant to Article 28(1) of the Swiss Civil Code (hereinafter CC), any person whose personality rights are unlawfully may petition the court for protection against all those causing the infringement. Article 28(2) CC specifies that an infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law.
In such a case, the party that considers his or her rights infringed may ask the judge to prohibit a threatened infringement, to order that an existing infringement cease, to make a declaration that an infringement is unlawful if it continues to have an offensive effect (Art. 28a para. 1 CC). This is without prejudice to actions for damages, moral reparation and delivery of profits in accordance with the provisions on business management without a mandate (Art. 28a para. 3 CC). Nevertheless, claims for damages and satisfaction and for handing over profits in accordance with the provisions governing agency without authority are reserved. (Art. 28a cpv. 3 CC).
In a recent judgment of the Federal Supreme Court of 22 July 20191, in a case in which a lawyer had sued a daily newspaper and persons implicated in the publication of a press article mentioning his name and surname, with a caption appearing on the front page entitled: “W.’s lawyer in trouble”. The highest judicial authority in Switzerland, after the injured party’s claims had been rejected before the lower courts of the Canton of Ticino, had first of all defined what constituted an infringement of personality2, specifying that “an interest at least equal to that of the victim, which is in principle worthy of protection, is considered overriding; the public interest can be said to be overriding when the sacrifice imposed on the victim by the infringement of privacy appears less important than the advantage that the public opinion derives from it”.
The Federal Supreme Court also added in that decision that the informative task of the mass media is not an absolute justification. In essence, the existence of a public interest in the publication of an article does not imply that it is permissible to disclose the identity of the person who is the victim of that publication. It is necessary to examine whether in the specific case the information mandate, which corresponds to a particularly important public interest, can justify the incriminated statements, while specifying that the scope of this justifying motive may in no case exceed the need to inform3: “The publication of false facts is therefore and remains per se unlawful; an overriding interest in their disclosure exists only in exceptional cases, for example when a police statement is reported without comment and with indication of the source”.
However, the Federal Supreme Court pointed out, that “not every journalistic inaccuracy makes the news story false as a whole: the article is likely to harm the victim’s personality if it is incorrect in essential points, and if as a result of this a manifestly distorted image of the victim is presented, such as to considerably diminish his consideration in the eyes of third parties“. The Federal Supreme Court then came to the conclusion that the press article, in having “explicitly mentioned the name” of the lawyer, had led to the injury to his personality and this without valid justification4, partially upholding the lawyer’s appeal and deferring the case to the Court of Appeal of the Canton of Ticino in Lugano for a new ruling on his claim for damages5.
In order to protect the victim, there is also the possibility of taking the route, which remains complex and time-consuming and more importantly costly, of formulating to the press organ involved, as well as to any further press organ that has then taken up the article, as it often happens, the anonymization and de-indexing of the article that has then inevitably become accessible both in the printed press and on the various online journalistic sites.
Actually, it remains a concrete and very serious problem that disrupts the private and professional existence of the victim, who finds himself overnight with a press article mentioning his name, without any overriding interest and in disregard of the principle of the presumption of innocence. And no damages can ever compensate for the damage to his image that has materialised in the meantime.
1 ATF 5A_562.2018 of 22 July 2019
2 ATF 5A_562.2018 of 22 July 2019, paragraph 4.4.1
3 ATF 5A_562.2018 of 22 July 2019, paragraph 4.1.1
4 ATF 5A_562.2018 of 22 July 2019, paragraph 4.2.4
5 ATF 5A_562.2018 of 22 July 2019, paragraph 6