Personality protection

Personality protection is enshrined in art. 28 et seq. of the Swiss Civil Code (CC). It covers all personal attributes inherent to a person — their honour, reputation, private life, image, name and identity — and confers on every natural or legal person rights of action in the event of an unlawful infringement. The civil avenue is independent of criminal proceedings and may be combined with the provisions of the revised Federal Act on Data Protection (FADP), in force since 1 September 2023.

The legal framework: art. 28 CC

Art. 28 para. 1 CC provides: "Any person whose personality is unlawfully infringed may seek protection from any person who participates in the infringement." This right belongs to every person, natural or legal (art. 53 CC for legal persons).

The legal mechanism rests on a presumption of unlawfulness: any infringement of personality is deemed unlawful unless it is justified. It is for the infringer to establish the existence of a justifying ground.

Lawful and unlawful infringements (art. 28 para. 2 CC)

Art. 28 para. 2 CC sets out three categories of justifying grounds that render an infringement lawful:

• The victim's consent — the person concerned has validly consented to the infringement (e.g. authorisation for the publication of an image, voluntary disclosure of private information)
• An overriding private interest — the infringer acts to protect a legitimate personal interest that outweighs the victim's interest in preserving their personality
• An overriding public interest — the infringement is justified by the public's right to information, freedom of the press, or a recognised general interest
• The law — a statutory provision expressly authorises the infringement (e.g. reporting obligations, criminal measures)

The balancing of interests must be carried out taking into account the gravity of the infringement and the importance of the interest invoked as justification.

Available actions (art. 28a CC)

Art. 28a para. 1 CC offers three non-pecuniary actions, which may be combined depending on the circumstances:

• Action for declaration (para. 1 no. 1) — to have the existence of the infringement judicially declared, in particular where the disturbance persists despite the cessation of the act or where the victim has an interest in the declaration
• Action for cessation (para. 1 no. 2) — to bring a current and ongoing infringement to an end; this is the most common action, aimed, e.g., at the removal of a publication or the deletion of online content
• Action for prohibition (para. 1 no. 3) — to prevent a future infringement whose occurrence is imminent; requires demonstrating the concrete threat of an infringement

Art. 28a para. 3 CC also reserves pecuniary compensation actions:

• Damages — under art. 41 et seq. CO, based on fault and proven loss. See the page on civil liability in Switzerland.
• Non-material harm — art. 49 CO: equitable compensation where the personality infringement is serious and culpable. See the page on damages and non-material harm.
• Disgorgement of profits — art. 423 CO: if the infringer has made a profit by infringing the victim's personality (e.g. unauthorised commercial use of an image), the victim may demand restitution of the profit realised, even without proven fault.

Provisional measures (art. 261 et seq. CPC)

In the event of an imminent infringement or particular urgency, the victim may seek provisional measures before the competent court (art. 261 et seq. of the Code of Civil Procedure, CPC). The former provisions of art. 28c to 28f CC were repealed upon the entry into force of the CPC in 2011; the law on provisional measures is now governed exclusively by the CPC.

The conditions for granting provisional measures are:

• A credible right — the applicant must show that the infringement is credibly unlawful (art. 261 para. 1 let. a CPC)
• Urgency — the applicant faces a threat of harm that would be difficult to remedy (art. 261 para. 1 let. b CPC)

The court may order in particular a prohibition on publication, the deletion of content, the seizure of distribution media, or any other measure suitable for protecting personality. In cases of particular urgency, an ex parte order may be issued without hearing the opposing party (art. 265 CPC).

The right of reply (art. 28g–28l CC)

The right of reply is a specific mechanism applicable to periodically published media (print press, radio, television, periodically updated online publications). It allows any person directly concerned by an inaccurate presentation of facts to have a corrective reply published.

Conditions and modalities:

• Entitled party — any natural or legal person directly concerned by the presentation of facts (art. 28g para. 1 CC)
• Scope — only presentations of facts, not value judgments (art. 28h para. 1 CC)
• Form and length — the reply must be concise and limited to the subject of the contested presentation; it may not exceed double the length of the text to which it responds (art. 28h para. 2 CC)
• Time limit — twenty days from becoming aware, but at most three months after publication (art. 28i para. 2 CC)
• Publication — the media must publish the reply without delay, in the same column or an equivalent position, at no cost to the applicant (art. 28i para. 1 CC)
• Refusal — in the event of an unjustified refusal to publish, the court may order publication under penalty (art. 28l CC)

Personal data protection and its relationship to the FADP

The revised Federal Act on Data Protection (FADP of 25 September 2020, in force since 1 September 2023) provides a complementary avenue of protection alongside art. 28 CC when the personality infringement results from the processing of personal data.

The rights recognised by the FADP include in particular:

• Right of access (art. 25 FADP) — any person may request the data controller to disclose the data concerning them, their origin, purpose and any recipients
• Right of rectification (art. 32 FADP) — to demand the correction of inaccurate data
• Right to erasure (art. 32 FADP) — to request the deletion or destruction of data processed in violation of the law
• Right to object — to object to certain processing, in particular for commercial prospecting purposes

The FADP also imposes enhanced obligations on data controllers (privacy by design and by default principle, art. 7 FADP; obligation to report security breaches to the Federal Data Protection and Information Commissioner, art. 24 FADP). Both avenues — art. 28 CC and the FADP — may be pursued simultaneously when the personality infringement arises from unlawful data processing. See also the page on image rights in Switzerland.

Protected aspects of personality — overview

Limitation periods for actions

Non-pecuniary actions based on art. 28a para. 1 CC (declaration, cessation, prohibition) are not strictly time-barred as long as the infringement subsists or the risk of recurrence remains. By contrast, actions for compensation for loss and for non-material harm are subject to the limitation rules of the law of obligations:

• Relative period: three years from the day the victim gained knowledge of the loss and the person liable for compensation (art. 60 para. 1 CO, as amended by the revision of prescription law that entered into force on 1 January 2020)
• Absolute period: ten years from the day the harmful act occurred (art. 60 para. 1 CO), regardless of knowledge of the loss
• Criminal infringements: if the act also constitutes a criminal offence, the limitation period for the civil action may not be shorter than the limitation period for the criminal action (art. 60 para. 2 CO)

The action for disgorgement of profits (art. 423 CO) is subject to the rules applicable to management without authority, i.e. the ordinary limitation periods. It is advisable to act promptly to avoid any limitation issues, particularly where the infringement occurred in the past.

Frequently asked questions about personality protection in Switzerland