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Do you fear being confronted with defamatory media or NGO content as a company or have you already been confronted with it and wondered how you can take action against it? Our lawyers in Zurich, St. Gallen and Frauenfeld regularly represent companies that are confronted with defamatory content and will be happy to provide you with information.
From a legal perspective, there are two ways to take action against defamatory media or NGO content.
On the one hand, from a criminal law perspective, defamation offenses are listed in Art. 173 ff. of the Swiss Criminal Code (SCC). Specifically, anyone who accuses or suspects another person of dishonorable conduct or other facts that are likely to damage their reputation against their better knowledge, as well as anyone who spreads such an accusation or suspicion against their better knowledge, is liable to prosecution for defamation under Art. 174 para. 1 SCC and, upon request, is punished with a custodial sentence of up to three years or a fine. If the offender has deliberately set out to undermine a person's good reputation, he is liable to a custodial sentence of between one month and three years or a fine of not less than 30 daily rates (Art. 174 para. 2 SCC).
On the other hand, under civil law, personality rights are protected in accordance with Art. 27 ff. of the Swiss Civil Code (CC). Anyone whose personality is unlawfully violated can take legal action to protect themselves against anyone who contributes to the violation (Art. 28 para. 1 CC). An infringement is unlawful if it is not justified by the consent of the injured party, by an overriding private or public interest or by law (Art. 28 para. 2 CC). For media content in particular, there is a right of reply. Accordingly, anyone whose personality is directly affected by factual representations in periodically published media, in particular the press, radio and television, has a right of reply (Art. 28g para. 1 CC, for the specific procedure see Art. 28g ff. CC). It is also possible to claim damages in the event of provable financial loss.
The procedure through criminal proceedings is simpler for the company concerned in that the state is obliged to establish the relevant facts. On the other hand, the result is primarily a punishment of the accused person and thus no elimination of the undesired content. It must therefore be examined on a case-by-case basis whether criminal prosecution of the persons responsible or the removal of the content in question and/or the assertion of damages suffered is appropriate. The options can also be combined. The best strategy therefore always depends on the individual case. Our lawyers in Zurich, St. Gallen and Frauenfeld will be happy to advise you on the best strategy.
Such criminal and/or civil proceedings should be initiated promptly, as defamation offences are offences for which a criminal complaint must be filed within three months. In the case of the right of reply, a maximum period of three months from the date of becoming aware of the objectionable factual statement must also be taken into account (Art. 28i para. 1 ZGB). Limitation periods must then be observed when claiming damages.
In addition, a company must weigh up for itself in each individual case how high the litigation risk is in relation to possible additional damage to its public reputation. Our lawyers in St. Gallen, Zurich and Frauenfeld will also be happy to help you with an assessment of the litigation risks that may arise from the commencement of a formal legal dispute based on the evidence.