Natio­nal Coun­cil adopts moti­on Amherd (14.3367): “Com­ba­ting sexting”.

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.

Sub­mit­ted text

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.




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