HG ZH: Rela­ti­on­ship bet­ween the reme­dies of ZGB 28 and UWG 3; public inte­rest in information

In March 2022, the Com­mer­cial Court of the Can­ton of Zurich had sta­ted rather obiter in a case brought by an entre­pre­neur against Blick (the Com­mer­cial Court of Zurich has anony­mi­zed its decis­i­on in such a makes­hift man­ner that the ori­gi­nal source can be found imme­dia­te­ly) (judgment of March 25, 2022, Busi­ness no.: HE220016) that the reme­dies under Art. 28 CC and tho­se under Art. 3 UCA are in prin­ci­ple appli­ca­ble in parallel:

In the lite­ra­tu­re, the rela­ti­on­ship bet­ween the pro­tec­tion of per­so­na­li­ty rights and the pro­tec­tion against unfair con­duct is dis­cus­sed con­tro­ver­si­al­ly (see file 1, para. 17 [appli­cant] and file 8, para. 21 [respon­dent]). Accor­ding to the opi­ni­on expres­sed here, the legal reme­dies of Art. 28 of the Civil Code and Art. 3 of the Unfair Com­pe­ti­ti­on Act can in prin­ci­ple be invo­ked cumu­la­tively if vio­la­ti­ons of per­so­na­li­ty and unfair com­pe­ti­ti­on law are com­plai­ned of at the same time.. This must app­ly in any case if both the per­so­na­li­ty of the appli­cant (pro­tec­ted by Art. 28 ZGB) and his pro­fes­sio­nal honor (pro­tec­ted by Art. 3 para. 1 lit. a UWG) are alle­ged to have been vio­la­ted. Howe­ver, this – as said – con­tro­ver­si­al­ly dis­cus­sed topic does not have to be deepe­ned here, becau­se neither a vio­la­ti­on of per­so­na­li­ty nor an unfair con­duct by the oppo­nent of the appli­ca­ti­on is made cre­di­ble, as will be shown in the following.

The Com­mer­cial Court’s refe­ren­ces to the – affirm­ed – public inte­rest in the publi­ca­ti­on of the incri­mi­na­ted con­tri­bu­ti­on are also interesting:

If the­re were a vio­la­ti­on of honor or pri­va­cy (Art. 28 para. 1 CC) – which, as men­tio­ned, is not the case – it would have to be exami­ned whe­ther, on the basis of the media’s duty to inform, an over­ri­ding public inte­rest in the dis­se­mi­na­ti­on of the infor­ma­ti­on is to be assu­med (Art. 28 para. 2 CC). In the pre­sent case, it is undis­pu­ted that the appli­cant “fork­ed out lar­ge sums for pri­va­te pur­po­ses” from H., which he foun­ded at the turn of the mill­en­ni­um, and that the [pen­si­on fund] went bank­rupt in 2002. The­re is a gre­at public inte­rest in being allo­wed to report on the­se que­stionable events, even if they are a long time ago. This is par­ti­cu­lar­ly true becau­se the appli­cant has sin­ce been signi­fi­cant­ly invol­ved in the estab­lish­ment of a pen­si­on fund with 80,000 cus­to­mers and a pen­si­on capi­tal of over three bil­li­on Swiss francs. In addi­ti­on, the The issue (and pro­blem) of occu­pa­tio­nal pen­si­on pro­vi­si­on repres­ents one of the cen­tral socio-poli­ti­cal chal­lenges, which is why the­re is an emi­nent public inte­rest in report­ing on it.

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