[update, photos added] (GenevaLunch) – Saying what you think of someone is not necessarily a
straightforward business in Switzerland, at least where the law is
Swiss media reported last week that a man was fined CHF1,000
for shouting rude abuse at another person. Neuchatel’s newly re-elected
councilor, Valérie Garbani, had her personal life, including an arrest
for drunk and disorderly conduct and reports of domestic violence,
dragged through the Swiss media in the past two weeks. It was an unusually public set of reports on
someone’s private life: the media in Switzerland generally play it safe
and don’t spill the beans about public personalities’ peccadilloes,
many of which are known to a large number of journalists. Some months ago a friend’s teenage son in Vaud was taken in by police for questioning because of lewd drawings of a teacher swapped with pals on the Internet.
The law in Switzerland distinguishes between public figures and the
rest of us – but it does not define "public figure." The Internet has
made many of us far more public than we were in the past but this is a
gray area and lawyers say it doesn’t give us a license to dump on
ex-spouses, for example.
If you have been reading the New York Times lately you might know that bashing your ex on the Internet is hot
– consider these options for creative attacks on the person you’ve
learned to loathe: a blog about her lack of interest in sex or how
boring he is in bed, or posting videos on YouTube or linking to the
ex’s page on a dating site. There is more: the article is long and it
offers a startling view of how public the Internet can make divorce. A weekly fireside chat with your best friend over a glass of wine
about just how awful that man is, video camera to hand, can be
tempting, but think again.
If you live in Switzerland, definitely beware. The Internet may be
international but what might pass as legal in the US and some other
countries may well be considered a crime in Switzerland. Mathis Kern, a
Geneva lawyer with Advise.ch, specializes in Internet law. GenevaLunch asked him to comment on the NY Times
article. "I would say that under Swiss law, the type of behaviour
described in the article could be qualified as defamation." He refers
to code 173 of the Swiss Criminal code which refers to defamation, in
part, as throwing suspicion on the honour of a person.
Anne Reiser, a well-known Geneva lawyer who often lectures on family matters, agrees with Kern. Intent
is the key word, she notes, and a judge looking at such cases would
want to determine what was in the accused person’s mind. "Freedom stops
where we infringe on the other person’s freedom," she points out.
"Privacy is something everyone has a right to." Even with public
figures such as Garbani, journalists and anyone else writing publicly –
and this includes the Internet – are limited to writing about matters
of public interest. But how do you define these?
For a start, if you’re American, forget the First Amendment and the
notion that you can say what you like about someone. Our private lives
are not public fodder under Swiss law. If you spill the beans about
your ex, who lives in Canada or the US or the UK he or she could take
you to court in Switzerland because you are domiciled here. You might
get away with it if you’re writing fiction, which is considered a work
of art, but you’ll have to be so creative that the ex can’t be
recognized. That might not give you the satisfaction or therapeutic value you had in mind.
As for divorce settlements where the two parties are sworn to
secrecy, a solution one lawyer in the NY Times story said she
encourages, they are not necessary in Switzerland. Divorce settlements
happen behind closed doors and no one except the concerned parties
knows exactly what was involved, including the financial side of it –
and they don’t have the right to talk about it, because it’s part of
the private sphere of the other person.
Forget the nasty blog and YouTube videos you had in mind and invest in some healthy therapeutic activity. Developing your online writing skills might be one form of therapy, but don’t fool yourself that you are writing just for family and friends. If you publish it on the Internet you’re broadcasting what could be considered by the law to be private information.