March 07 2013
In one such blog, a politician from Geneva commented on a former director of a local bank in a way that infringed the personality rights of the former director. The former director initiated preliminary proceedings against the author of the blog post and the newspaper, asking the court to order both defendants to remove the post from the newspaper's website. The first instance court sustained the claim. In the ensuing proceedings for validation of the preliminary injunction before the courts of the Canton of Geneva, the courts of first and, on appeal, second instance confirmed the preliminary judgment. They concluded that both the author and the newspaper had objectively infringed the claimant's personality rights, and that they had been rightfully ordered to remove the post. Further, they ordered the post's author – but not the newspaper – to compensate the claimant for pain and suffering. In essence, the rationale of their decisions was that hosting and publishing a blog is comparable to publishing a letter to the editor in a newspaper, where it is an established principle that the newspaper may be liable (together with the author and possibly other persons) for unlawful content.
The newspaper appealed this decision before the Supreme Court. It argued that it should not be held liable for the infringing acts of the blog's author because blogs function differently from traditional media, and because it would be unreasonable and impractical to hold blog platform operators liable for unlawful publications by their users. The newspaper also pointed to foreign legislation that it said would shield blog providers from such liability.
The court rejected these arguments. Civil liability for infringements of personality rights is based on Articles 28 and following of the Civil Code. In Swiss law there are no special rules on the civil liability of blogs or other types of media. (However, on November 23 2011 Parliament commissioned the Federal Council - Switzerland's highest executive authority - to draft a report on the current legislation applicable to social media, and on whether and how this legislation should be improved. It remains to be seen whether this report will cover blogs and find a need for specific protection.)
Under Article 28(1), a person whose personality rights are infringed may act against all those 'participating' in the infringement. 'Participation' includes the primary infringement, but also any other form or degree of participation that causes, permits or furthers the infringement, even in an insignificant way, and independently of any fault on the part of the infringer. In the context of media, this means that transmitting intermediaries may become liable for infringing content. Moreover, it is at the claimant's sole discretion to sue any one or several of the infringers. Applied to blogs, blog platform providers enable their users to publish content and therefore participate in infringements. The court therefore rejected the appeal, mentioning in passing that it would be for the legislature to mitigate the potentially harsh consequences of such liability.
The Supreme Court's decision is no surprise, but it underlines that all acts - however small - may lead to civil responsibility. Moreover, the decision applies not only to infringements of personality rights, but also to other areas, including IP rights infringements. However, the liability for infringement of, among other things, personality rights has legal consequences on two levels, which may be described as defensive and offensive. In its defence, the infringed party may ask the court to prohibit a threatened infringement, to order the cessation of an existing infringement and, depending on the circumstances, to make a declaration that an infringement is unlawful. These claims are all independent of fault on the part of the infringing party. In addition, on an offensive level, the infringed party may seek to recover damages caused by the infringement and compensation for pain and suffering. These claims require fault (ie, intention or negligence) on the part of the infringing party. Where the participation in an infringement is minor, it will most often be difficult to argue that the participating party committed a fault. Blog providers and other internet service providers may therefore be required to remove infringing content or otherwise to cease an existing infringement, but will not normally be held liable for financial damages or compensation unless they are at fault.
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