Privacy in Switzerland: overview

A Q&A guide to privacy in Switzerland.

The Q&A guide gives a high-level overview of privacy rules and principles, including what national laws regulate the right to respect for private and family life and freedom of expression; to whom the rules apply and what privacy rights are granted and imposed. It also covers the jurisdictional scope of the privacy law rules and the remedies available to redress infringement.

To compare answers across multiple jurisdictions, visit the Privacy Country Q&A tool.

This article is part of the global guide to data protection. For a full list of contents, please visit www.practicallaw.com/dataprotection-guide.

Stéphanie Chuffart-Finsterwald, BCCC Attorney-at-law LLC
Contents

Legislation

1. What national laws (if any) regulate the right to respect for private and family life and freedom of expression?

Switzerland is a signatory to the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention on Human Rights) and Articles 8 and 10 of the Convention are, therefore, applicable. In general, rulings of the European Court of Human Rights are strictly followed and implemented in Switzerland.

Nationally, the right to respect for private and family life and freedom of expression are regulated by the Federal Constitution and the Civil Code.

The following articles of the Federal Constitution are relevant to privacy:

  • Section 1 of Article 13 provides that 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.

  • Article 14 guarantees the right to marry and to have a family.

  • Article 15 guarantees the right to freedom of religion and conscience.

  • Article 16 guarantees the right to freedom of expression and of information.

Articles 28 et seq. of the Civil Code guarantee the protection of legal personality in general.

 
2. Who can commence proceedings to protect privacy?

Any natural person who has suffered or is suffering from an illegal breach of privacy can commence proceedings to protect privacy. Examples of personality defensive actions are the action for the execution of data rectification obligations (Articles 8 and 15, Federal Act on Data Protection; Articles 28, 28a and 28l, Civil Code) or the right of reply action in the case personality rights are directly affected by a representation of events in periodically appearing media (Article 28g, Civil Code). For legal persons, a breach of the "social personality" is necessary to commence proceedings (for example, right to honour and reputation, right over image).

Persons capable of judgement but lacking capacity to act can exercise strictly personal rights independently (for example, in relation to personality defensive actions, but not for damages claims and satisfaction) (Article 19c, section 1, Civil Code).

 
3. What privacy rights are granted and imposed?

The Federal Constitution provides that every person has the right to (see Question 1):

  • Privacy in:

    • their private and family life;

    • their home; and

    • relation to their mail and telecommunications.

  • Marry and to have a family.

  • Freedom of religion and conscience.

  • Freedom of expression and of information.

Furthermore, the Civil Code guarantees the protection of legal personality. In particular, section 2 of Article 28 provides that an infringement to legal personality is unlawful unless it is justified by the consent of the person whose rights are infringed, by an overriding private or public interest or by law. Breach is then presumed and fault is not a condition for action.

The protection offered under Swiss law is quite broad and covers any breach to legal personality, namely any behaviour which in any way jeopardises privacy rights (including defamation, threats, harassment, or breach of secrecy). The notion of "personality" in this case encompasses the physical, affective and social aspects of personality.

Additionally, every person has the right to be protected against the misuse of their personal data (Article 10, section 2, Federal Constitution). This general right is implemented through the Federal Act on Data Protection (FADP).

 
4. What is the jurisdictional scope of the privacy law rules?

According to the Swiss Private International Law Act (PILA), Swiss privacy provisions apply when the (Article 33, section 2 and Article 133, PILA):

  • Offending party and the injured party have their habitual residence in Switzerland.

  • Tort was committed in Switzerland (provided the offending party and the injured party do not have their habitual residence in the same country and that, if the result occurred in another state, the offending party should not have foreseen that the result would occur there).

  • Tort breaches a legal relationship submitted to Swiss law and existing between the offending party and the injured party.

 
5. What remedies are available to redress the infringement of those privacy rights?

There are numerous remedies available under Swiss law to redress the infringement of privacy rights.

Any person whose personality rights are unlawfully infringed can petition the court for protection against all those causing the infringement (Article 28, section 1, Civil Code). In particular, the applicant may ask the court to (Article 28a, section 1, Civil Code):

  • Prohibit a threatened infringement.

  • Order that an existing infringement cease.

  • Declare an infringement unlawful, provided such infringement continues to have an offensive effect.

Additionally, the applicant can request that the rectification or the judgment be notified to third parties or published (Article 28a, section 2, Civil Code). Claims for damages and satisfaction or for the handing over of profits can also be granted (Article 28a, section 3, Civil Code).

In the case of violence, threats or harassment, the applicant can request the court to order the offending party to refrain from (Article 28b, section 1, Civil Code):

  • Approaching the applicant or from entering a defined area around the applicant's dwelling.

  • Frequenting specified locations (for example, particular streets, squares or districts).

  • Making contact with the applicant, especially by telephone, in writing or electronically, or from harassing the applicant in any other way.

 
6. Are there any other ways in which privacy rights can be enforced?

Provisions of the Criminal Code can apply to specific privacy breach or infringement to legal personality, such as (Article 173 et seq., Criminal Code):

  • Defamation (criminal sanction is a monetary penalty of up to 180 daily penalty units).

  • Willful defamation (criminal sanction ranges from a monetary penalty to a custodial sentence not exceeding three years).

  • Insult (criminal sanction is a monetary penalty of up to 90 daily penalty units).

  • Breach of the privacy of a sealed document (criminal sanction is a fine).

  • Listening in on and recording the conversations of others (criminal sanction ranges from a monetary penalty to a custodial sentence not exceeding three years).

  • Unauthorised recording of conversations (criminal sanction ranges from a monetary penalty to a custodial sentence not exceeding one year).

  • Breach of secrecy or privacy through the use of an image-carrying device (criminal sanction ranges from a monetary penalty to a custodial sentence not exceeding three years).

  • Misuse of a telecommunications installation (criminal sanction is a fine).

  • Obtaining personal data without authorisation (criminal sanction ranges from a monetary penalty to a custodial sentence not exceeding three years).

 

Contributor profile

Stéphanie Chuffart-Finsterwald, Associate

BCCC Attorney-at-law LLC

T +41 22 704 3600
F +41 22 704 3601
E s.chuffart@bccc.ch
W www.bccc.ch

Professional qualifications. Switzerland, Attorney-at-law

Areas of practice. Data protection; intellectual property; technology transfer; assignments, licences research and development contracts; privacy law; unfair competition.

Non-professional qualifications. Bachelor of law magna cum laude, University of Fribourg; Master in international law, the Graduate Institute of International and Development Studies (IHEID); LLM, Columbia Law School (Harlan Fiske Stone Scholar); PhD summa cum laude, IHEID

Recent transactions

  • Advising numerous companies in data protection issues and compliance.
  • Reviewing privacy policies for numerous companies.
  • Acting for a Swiss company in a trade mark litigation.
  • Acting for a Swiss company in an arbitration in front of the WIPO Arbitration and mediation center (UDRP).

Languages. French, English, German

Professional associations/memberships. Geneva Bar Association, Member of the Commission for innovation and modernization of the Bar, Swiss Bar Association (FSA), Licensing Executives Society Switzerland (LES-CH), Centre for Business Law of the University of Lausanne (CEDIDAC).

Publications

  • Optimising environmental technology diffusion under intellectual property constraints: A legal analysis, Schulthess (2016).
  • From the Other Shore: Economic, Social, and Cultural Rights from an International Environmental Law Perspective, in E. Riedel et al. (eds.), Economic, Social, and Cultural Rights in International Law: Contemporary Issues and Challenges, Oxford University Press (2014, with Jorge E. Viñuales).
  • Environmental Technology Transfer and Dissemination under the UNFCCC: Achievements and New Perspectives, Environmental Claims Journal, Volume 26, Issue 3, 2014.
  • Patent Markets: An Opportunity for Technology Diffusion and FRAND Licensing?, Marquette Intellectual Property Law Review, Volume 18, Summer 2014, Number 2, pp. 337-367.

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