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.