Interpellation Hiltpold (10.3396): Unauthorized dissemination of photos or videos and protection of the persons concerned
Rejected (19.6.2013)
Submitted text
I request the Federal Council to provide information on how the unauthorized dissemination of images taken with the consent of the person recorded is treated in criminal law. If the lack of penal measures in this area is confirmed, I ask the Federal Council to also indicate whether the possibility of a revision of the law to this effect has already been examined or is currently being examined.
Justification
Thanks to technological progress in recent years, photos and videos can now be disseminated easily and quickly via MMS, e‑mail or Internet uploads – to name just a few examples. More and more often, recordings made with the consent of the person concerned are disseminated without their knowledge. This is especially true of private images taken in confidence that are disseminated or published out of revenge or as a bad joke.
The Federal Act on Data Protection and the provisions of the Civil Code on the protection of personality (Articles 28ff. CC) do provide some means of prevention, defense and satisfaction in cases such as the above. However, the unauthorized dissemination of private images taken with the consent of the person concerned is apparently not covered by criminal law (subject to the cases listed in Article 197 SCC).
Statement of the Federal Council
The Federal Council naturally shares the view expressed by the interpellant in essence, according to which it is not justifiable to disseminate private or even intimate photos and videos via MMS, e‑mails or the Internet without the consent of the person concerned, even if they were taken with the consent of the person concerned.
However, this conduct is not punishable per se, unless it is a violation of honor under Articles 173 to 178 of the Swiss Criminal Code (SCC; SR 311.0), which would be the case, for example, in the case of falsified photos or videos with components that violate the honor of the person concerned. Moreover, it is very unlikely that the conduct in question would fall within the scope of Article 67 of the Federal Copyright and Related Rights Act (URG; SR 231.1), as it is hard to imagine that such photos or videos could constitute works within the meaning of Article 2 URG.
The conduct in question is therefore not punished under the applicable criminal law, but under civil law it is different. It can be covered by Articles 28ff. of the Swiss Civil Code (ZGB; SR 210). The right to one’s own image is one of the personality protection rights under Article 28 of the Civil Code. Accordingly, the dissemination of a photograph or a video without the consent of the person concerned constitutes a violation of personality rights, regardless of whether the images were taken with the consent of the person mentioned. This is subject to the case in which the dissemination is justified by an overriding private or public interest. An overriding interest is deemed to be, for example, the press’s duty to inform or the law (Art. 28 para. 2 of the Civil Code). The dissemination of photos and videos under the conditions described by the interpellant constitutes a violation of the personality of the person concerned that is not justified by an overriding private or public interest and is therefore unlawful. In addition to the actions for damages and for satisfaction as well as for surrender of the profit pursuant to the provisions on management without mandate (Art. 28a para. 3 CC) and the precautionary measures (Art. 28c CC), the person concerned can defend himself against an unlawful interference with his personality by applying to the court to prohibit the infringement (Art. 28a para. 1 item 1 CC), to remedy it (Art. 28a para. 1 item 2 CC) or to establish its unlawfulness (Art. 28a para. 1 item 3 CC). It should be noted that the conduct referred to by the interpellant is also covered by the Federal Act of 19 June 1992 on Data Protection (FADP; 235.1), in particular by Articles 2, 3 letters a and e, 4 paragraph 3, 12, 13 and 15 FADP. However, these provisions do not go beyond Article 28 CC, and Article 15 FADP refers, with regard to the rights of the data subject and the procedure, to Articles 28 et seq. CC. Finally, in connection with the related topic of cyber-bullying, it should be mentioned that the Federal Council concluded in the report of 26 May 2010 on the settlement of the postulate Schmid-Federer 08.3050 that the existing standards are sufficient to prosecute and punish this form of bullying.
The Federal Council is of the opinion that the above-mentioned regulation is sufficient to effectively defend the rights of the person concerned against the conduct referred to by the interpellant. In this regard, it should be mentioned that criminal law should only punish a conduct if the other provisions of the legal order are not sufficient. It follows that the Federal Council has not considered it necessary, or does not consider it necessary, to go further into the question of the appropriateness of a provision that would punish the conduct in question under criminal law.