Defamation and attack on honour

Honour constitutes one of the essential aspects of personality protected by art. 28 of the Swiss Civil Code (CC). Any person whose honour is unlawfully attacked may apply to the court to obtain cessation of the interference, its recognition, or reparation of the harm suffered. Swiss law provides two distinct routes: the civil route, based on art. 28 CC, and the criminal route, governed by art. 173 (defamation) and 174 (slander) of the Criminal Code (CP). Both routes may be pursued in parallel and serve complementary objectives. Personality protection also encompasses other rights, such as image rights.

Civil route — art. 28 CC

Art. 28 CC protects every natural or legal person against unlawful interferences with their personality, including their honour. The civil route has several important characteristics:

• No fault required: unlike ordinary civil liability law, an action based on art. 28 CC does not require that the author be at fault. Only the unlawful nature of the interference must be established.
• Unlawful interference: an interference is unlawful unless the injured person has consented, a preponderant private or public interest justifies it, or the law authorises it (art. 28 al. 2 CC).
• Plurality of actions: the victim has several different actions depending on the objective pursued (art. 28a CC), which may be combined.
• Legal persons: companies, associations and other legal entities may also invoke art. 28 CC to protect their commercial reputation.

Criminal route — art. 173 CP (defamation) and art. 174 CP (slander)

The Swiss Criminal Code punishes two distinct offences against honour:

Defamation (art. 173 CP)

A person commits defamation who, when addressing a third party, accuses a person or casts suspicion on that person of conduct contrary to honour, or of any other fact capable of damaging that person's reputation, or who spreads such an accusation or suspicion. Defamation is prosecuted on complaint. The penalty is a monetary penalty of a maximum of 180 daily rates.

Slander (art. 174 CP)

Slander is an aggravated form of defamation: the author alleges or spreads facts that he knows to be false and that are capable of harming the victim's honour. The distinguishing element is knowledge of the falsity of the allegation. The penalty is a custodial sentence of up to one year or a monetary penalty.

Differences between the civil and criminal routes

Available civil actions (art. 28a CC)

Art. 28a CC lists the actions that the victim may bring before the civil court. These actions may be combined:

Declaration of unlawfulness

The victim may ask the court to declare that the interference is unlawful. This action is of particular interest when the interference has already ceased but the victim has a legitimate interest in having the unlawfulness officially recognised, for example to restore his or her reputation.

Cessation and prohibition

If the interference is imminent or ongoing, the victim may request that the author be prohibited from committing or continuing it (action for prohibition). This action is forward-looking and aims to prevent or stop the harm.

Publication of the judgment

The court may order publication of the judgment at the expense of the condemned party, in particular in the newspapers or on the platforms where the interference was committed. This measure contributes to the public rehabilitation of the victim.

Damages (art. 41 CO)

The victim may claim reparation of his or her economic harm: loss of clients, damage to professional reputation, costs incurred in defending honour. Fault on the part of the author is required here, unlike the action for cessation. For more information, see our page on damages and moral prejudice.

Moral prejudice (art. 49 CO)

Where the attack on honour causes the victim particularly severe moral suffering, the court may award compensation for moral prejudice. The amount is determined in equity according to the severity of the interference, the duration of public exposure, and the notoriety of the parties.

Disgorgement of profits (art. 423 CO)

If the author of the interference derived a profit from it — advertising revenues from a viral article, sales of a defamatory work — the victim may request disgorgement of that profit, even in the absence of an equivalent direct loss.

The exceptio veritatis

The truth of the allegation plays a different role depending on the route chosen.

In criminal matters

Art. 173 al. 2 CP provides that the author is not punishable if he proves that the allegations correspond to the truth or if he has serious reasons to believe them in good faith (exceptio veritatis and exceptio bonae fidei). Proof of truth must relate to the allegation itself, and not to analogous facts or to the victim's general character.

In civil matters

In civil law, the truth of the allegation is not sufficient to exclude unlawfulness. The interference may be justified if the author acts in a preponderant interest (art. 28 al. 2 CC), for example the public interest in information on matters of general utility. The court weighs the author's interest in disclosing the information against the victim's interest in protection of his or her honour. Thus, a true allegation may remain unlawful if its disclosure does not serve any sufficient legitimate interest.

Interference through the media and on the Internet

Attacks on honour committed through the press or on the Internet raise specific questions of liability:

• The direct author — journalist, blogger, internet user — is primarily responsible for his or her writings or statements.
• The media outlet or publisher may incur civil liability if it published the disputed content or if it failed in its duty of verification.
• The platform provider (host, social network) benefits in principle from reduced liability, but may be required to act promptly to remove manifestly unlawful content once it has been made aware of it.

Right of reply

Any person whose personality is affected by presentations of facts in periodical broadcast media has the right to reply (art. 28g CC). The reply must be limited to correcting the disputed facts and may not constitute an attack on the media outlet. The request for a right of reply must be addressed to the editorial office within 20 days of publication (art. 28h al. 1 CC). The right of reply applies to online newspapers published periodically, but not to social networks or private blogs.

Combining the civil and criminal routes

The victim of an attack on honour may simultaneously pursue a civil action and a criminal complaint procedure. Combining the two routes is expressly admitted under Swiss law:

• Art. 124 of the Code of Criminal Procedure (CPP) allows the complainant to assert civil claims before the criminal court, by joining as a civil party. The criminal court then rules on the civil claims at the same time as on the offence.
• If the complainant waives the assertion of civil claims before the criminal court, he or she may still bring a separate action before the civil court (art. 126 al. 3 CPP).
• The criminal judgment on guilt does not bind the civil court on the question of civil unlawfulness, as the standards of proof differ.

Provisional measures

Urgency is often decisive in matters of attacks on honour: the more widely content circulates, the greater the harm becomes. The Code of Civil Procedure (CPC) provides appropriate provisional measures:

• Ordinary provisional measures (art. 261 CPC): the court may order removal of content, prohibition of publication, or any other measure capable of averting the risk of imminent harm. The applicant must make credible the existence of a threatened right and harm that is difficult to repair.
• Ex parte measures (art. 265 CPC): in cases of particular urgency, the court may order measures immediately and without hearing the opposing party. These measures are provisional and must be confirmed at an adversarial hearing.
• Astreinte (art. 343 CPC): the court may attach a threat of a contractual penalty or an order fine to the injunction to ensure compliance with the order.

It is essential to carefully document the disputed content with timestamped screenshots before taking action, as the author may delete the content during the proceedings.

Limitation periods

The time limits for bringing proceedings differ depending on the route chosen:

Civil route

Claims for damages and moral prejudice based on art. 41 CO are time-barred after three years from the date on which the victim became aware of the harm and of the person liable for reparation, and in any event after ten years from the date of the unlawful act (art. 60 al. 1 CO). Actions for cessation or declaration of unlawfulness are not subject to a strict limitation period, but the victim must act without delay or risk losing the legitimate interest worthy of protection.

Criminal route

Offences against honour (art. 173 and 174 CP) are prosecuted on complaint. The complaint period is three months from becoming aware of the identity of the author of the offence (art. 31 CP). This period is mandatory: once it has elapsed, the complaint is inadmissible and the criminal route is closed. It is therefore imperative to act quickly once the author has been identified.

Frequently asked questions about defamation and attacks on honour under Swiss law