In a ruling of November 16, 2016 (NP160017; Swisslex) on the right of access to data concerning a deceased person.
Art. 1 para. 7 VDSG is contrary to federal law:
The OGer ZH states that the Personality ends with death (Art. 31 ZGB) and that information about a deceased person is therefore not personal data. In other words, the OGer ZH no longer considers a deceased person to be a “person” within the meaning of Art. 3 lit. b FADP. The OGer justifies this with the prevailing view:
[…] Art. 1 para. 7 of the DPA reads: “If information is requested about data of deceased persons, it shall be provided if the applicant proves an interest in the information and no overriding interests of relatives of the deceased person or of third parties are opposed. Close relationship as well as marriage with the deceased person justify an interest”. James Peter […] points out in this context that, according to Swiss legal practice, the right of personality and the protective purpose pursued by it also lapse upon the death of the person concerned, so that the right of information does not pass to the legal successor. The right to information under data protection law is a claim flowing from the right of personality concerning data relating to one’s own person […]. Art. 1 para. 7 DPA was therefore not only in the wrong place, but also covered a different subject matter than the right to information. Furthermore, there is no basis for this provision in the Data Protection Act ([…] similarly: Beat Rudin, in Baeriswyl/Pärli, Stämpflis Handkommentar zum DSG, n. 28 to Art. 8 […]). Belser/Epiney/Waldmann […] mention in the present context that the right to information under data protection law concerns one’s own data, i.e. a subjective, highly personal right that cannot be inherited. And BSK DSG-Niggli/Maeder […] state the following in this context: “Information must be provided about data of the requesting person (“about him”, Art. 8 para. 1 FADP). This legal formulation seeks to extend Art. 1 para. 7 FADP when it comes to data about deceased persons (and the requestor demonstrates a legitimate interest in the information through close relationship or marriage to the deceased or otherwise). This provision is likely to be unlawful. […]”. Also the statements in BSK DSG-Gramigna/Maurer-Lambrou point in the same direction […]”.
The Supreme Court of Zurich therefore dismissed an action for disclosure of information about the plaintiff’s deceased father. This is without prejudice to any claims based on the relatives’ own personal rights, which, however, did not play a role in the present proceedings. Article 7 para. 1 VDSG is therefore contrary to federal law.:
If, in view of the convincing view of the majority of the authors cited above, one considers Art. 7(1) DPA to be contrary to federal law, then the plaintiff must – on the basis of the right of personality – be denied information under data protection law regarding his father.
Disposition Maxim in Data Protection Law
The OGer ZH subsequently examines further claims for information, but denies them. In particular, there were no contractual claims for information of the father that could have been inherited by the plaintiff. In this context, the OGer ZH refers to the question whether the court is bound to a limitation of the asserted legal ground expressly made by the plaintiff. In this regard, it refers to the ruling of the BGer 4A_307/2011 of 16.12.2011, in which the BGer stated the following regarding the disposition maxim:
According to the case law of the Federal Supreme Court, a violation of the principle “ne eat iudex ultra petita partium” does not exist if a court evaluates the claim filed in a legal manner that deviates in whole or in part from the reasons given by the parties, provided that it is covered by the legal request […]. However, the court is bound by the Subject and scope of the request bound, especially if the plaintiff has his Claims qualified or limited in the legal request itself[…].
In the specific case, this meant that the claim to information only had to be examined in terms of data protection law, because the Legal request clearly referred to data protection law:
1. that the defendant be obliged to provide the plaintiff with information on all data concerning the plaintiff and the plaintiff’s deceased father […] which are contained in the Data collections available to the defendant, including the available information on the origin of the data, as well as the purpose and, if applicable, the legal bases of the processing, as well as the categories of personal data processed and the participants in the collection and the data recipients.
2. the defendant is to be obliged to provide the data information in the form of a printout or a photocopy in accordance with Art. 8 Para. 5 FADP.
The OGer ZH states:
At any rate, if the view of the Federal Supreme Court is followed, for which reasons can be given in the special case of data protection law, it must remain with the examination of the claims test based on the Data Protection Act.