The National Council has Motion Amherd (14.3367): Combating sexting of 07.05.2014 adopted on 15 June 2016, contrary to the recommendation of the Federal Council. Federal Councillor Sommaruga has in the Consulting justifies why, in the view of the Federal Council, a new penal provision is not necessary:
Now the mover of the motion would like to extend criminal liability to the unauthorized further dissemination of intimate photos and films of third parties that are not pornographic. However, in the view of the Federal Council, the regulations in the Criminal Code on coercion and threats offer sufficient protection against the further dissemination of non-pornographic images. We are of the opinion that there is no need for an additional criminal provision now. Because the person depicted originally passed on the image in question himself, from a criminal law perspective he also bears a certain responsibility for what happens to the image later. Criminal law should only be used as a last resort if the other provisions of the legal system are not sufficient. In the case of sexting, however, not only criminal provisions apply, but also the provisions of the Civil Code for the protection of personality. Persons whose intimate images are disseminated without their consent or against their will generally suffer unlawful infringement of their personality.
This is the case in civil law even if they created the recording themselves. They can therefore demand, among other things, the removal of the violation, damages and satisfaction. Even if no new criminal provision is to be created, that does not mean that nothing can be done or nothing should be done. National Councillor Amherd also mentioned this: for the Federal Council, it is crucial that media competence is promoted. Minors, parents and adult caregivers should be made aware of the risks associated with sexting. It is equally important to point out to potential onward disseminators the possible consequences of their actions. There are already various players who have also taken up this issue. I will now tell you by way of example that as part of the national “Youth and Media” program, there is the brochure “Media Competence. Tips for safe use of digital media” is available. It is aimed in particular at parents and caregivers. There is also a brochure for teachers and school administrators. In addition, a section on the “Youth and Media” information platform provides information on the risks of sexting. Pro Juventute has also carried out an information campaign on the subject of sexting with posters, video spots, and leaflets for parents, teachers, and young people. In addition, Pro Juventute offers workshops on media literacy for teachers, school classes and parents in all three language regions. The cantonal curricula, for example, also aim to enable students to participate in the media society in a self-determined, creative and responsible manner and to behave appropriately and in a socially responsible manner. This also means that they must be aware of the dangers that can be associated with the new media.
The Federal Council is instructed to submit an amendment to the Criminal Code to Parliament that includes sexting as a separate criminal offense.
The distribution and sharing of self-produced intimate photos and videos of oneself or others via the Internet and cell phones is increasing more and more. Via the Internet and messaging apps, these images spread at breakneck speed. The dissemination of the images is often accompanied by threats and coercion. Minors are often affected and suffer great harm.
In the answer to my interpellation 13.4266, the Federal Council states that the phenomenon of “sexting” should primarily be countered with prevention through awareness-raising and media competence, and that the existing legal rules are sufficient. Prevention is indeed of great importance. However, there is also a need for a clear legal regulation that makes it a punishable offense to disseminate intimate photos or videos of others. Such a norm can also have a preventive effect. In addition, in the current criminal law, the regulations on pornography in particular can be applied in the case of sexting. These presuppose that the image recording is “pornographic” or that the recording involves sexual acts with children. However, sexting often involves images that do not qualify directly as pornographic, but which can nevertheless cause considerable harm to the persons concerned by being disseminated to the public. Accordingly, the criminal law must be adapted, for example by supplementing Article 197(3).
Statement of the Federal Council of August 12, 2014
13.4266 states that the phenomenon of sexting must first and foremost be combated at its source. It is primarily a matter of raising awareness among minors, parents and adult caregivers, and in this way preventing the images in question here from being created and transmitted to others in the first place. The Federal Council has also outlined which penal norms apply in connection with sexting. If the dissemination of an intimate recording is accompanied by a threat or coercion, Article 180 or Article 181 of the Criminal Code (SCC; SR 311.0) apply, and if necessary also Article 197 SCC (pornography).
The mover of the motion now wants to extend the criminal liability and demands that the dissemination of intimate photos and films of third parties is also punished, even if it is not pornography within the meaning of Article 197 SCC. The petitioner’s concern is thus directed at images and film recordings that are not problematic solely on the basis of their content and the circumstances of their production.
Criminal law should only be used as a last resort (see also the Federal Council’s response to interpellation 10.3396). A course of conduct should only be punished if the other provisions of the legal system are not deemed sufficient. It is not the task of criminal law to cover every morally reproachable behavior.
The dissemination of intimate recordings by third parties is not a phenomenon that is particularly prevalent among minors: In the James study from 2012, 6 percent of more than 1,100 Swiss young people between the ages of 12 and 19 surveyed said they had sent erotic or provocative photos or videos of themselves via cell phone (Willemse/Waller/Süss/Genner/Huber, 2012, James – Jugend, Aktivitäten, Medien – Erhebung Schweiz, ZHAW). Only a small proportion of these are likely to have been forwarded to others.
In addition, the provisions on the protection of personality (Art. 28f. of the Civil Code; SR 210) already apply when intimate recordings of third parties are disseminated. Persons of whom an intimate image is disseminated without or against their will are, as a rule, unlawfully infringing on their personality, even if they themselves created the recording. They can therefore demand, among other things, the removal of the violation, damages and satisfaction. The Federal Data Protection Act (SR 235.1) also applies.
In the view of the Federal Council, the aforementioned provisions of the Civil Code and the existing regulations in the StGB offer sufficient protection here. First and foremost, however, media literacy must be promoted in order to sensitize minors, parents and adult caregivers to the risks associated with sexting. Not only young people who have already sent recordings of themselves or are considering doing so should be informed. It is equally important to inform (potential) redistributors of the possible consequences of their actions.
Overall, the Federal Council is of the opinion that an extension of criminal liability is not appropriate. However, as it has already stated in its response to Interpellation 13.4266, it is having the need for regulation in the protection of minors from harmful media examined as part of an overall assessment as part of the national “Youth and Media” program. The corresponding report is to be submitted to the Federal Council in the second quarter of 2015.