Complaint to the European Court of Human Rights in Strasbourg. At its core is the question of intimate privacy protection for public persons and the scope of the Federal Supreme Court's denial of justice.
Spiess-Hegglin obtains a preliminary injunction from the Cantonal Court Zug against the publication of a book by Tages-Anzeiger journalist Michele Binswanger. The court confirms the measure in September 2020: The publication of intimate details from Spiess-Hegglin's private life is prohibited.
Upon appeal by Binswanger, the High Court of the Canton Zug overturns the protective measure on 1 September 2021. It adopts the argument that the events at the 2014 Landammann celebration had become an event of contemporary history and, in part, "common property," not least because Spiess-Hegglin had spoken about them publicly in the following years. The book publication is permitted.
A media-science expert opinion by Prof. Dr. Vinzenz Wyss (ZHAW) dated 30 September 2021 refutes the assumption of a self-inflicted loss: Spiess-Hegglin's public statements were made in the legitimate role of media criticism and disclosed no aspects of her intimate sphere that were not already public. Her intimate sphere did not thereby become common property.
The Federal Supreme Court does not enter into Spiess-Hegglin's appeal (judgment 5A_824/2021 of 25 January 2022). It treats the injunction decision as an interlocutory decision and requires the appellant to demonstrate an irreparable disadvantage; this, it holds, was not sufficiently shown. A substantive examination of the intimate-sphere protection thus does not take place. An analysis in AJP 9/2022 classifies this non-entry as excessively formalistic and notes that the irreparable disadvantage was set forth in the appeal.
The complaint based on the Federal Supreme Court's denial of justice and the question of intimate privacy protection for public persons is filed with the European Court of Human Rights in Strasbourg. The Court communicated the complaint to the Swiss government and put a list of questions to it, a procedural stage that only a small fraction of complaints reach.
The ECtHR sends the Swiss government a questionnaire regarding the case. The proceedings are pending.
Published are exclusively court decisions, official ECtHR correspondence, and publicly accessible annexes. Parties' submissions (written statements) are not published. Private addresses have been redacted.
Case documents are accessible through the official ECtHR database:
The proceedings before the ECtHR raise a fundamental question: Can a person's intimate sphere be declared common property simply because the media illegally disseminated it over years? The High Court of Zug affirmed this by adopting the "common property" argument and overturning the protective measure; the Federal Supreme Court then declined, on formal grounds, to enter into the appeal and did not examine the question on the merits. This logic means: The longer and more intensely a media campaign is waged, the less protection the victim enjoys. The ECtHR must now clarify whether Article 8 of the ECHR (right to respect for private and family life) provides protection that the Swiss courts have denied.
The Federal Supreme Court justified its non-entry by stating that the appellant had not expressed herself "with a single word" about the irreparable disadvantage, despite this being set forth over six pages of the appeal.
An academic paper by Schulthess/Aeschimann/Cottinelli (AJP 9/2022) characterizes the dismissal as "excessively formalistic" – the disadvantage was "absolutely obvious," the refusal to address the substantive questions unjustified.
Beyond the substantive question of intimate privacy protection, the case raises a procedural principle question: Did Switzerland arbitrarily deny access to the courts? The ECtHR explicitly posed this question to Switzerland in its questionnaire and addressed the applicability of Article 6 ECHR (right to a fair trial). The Confederation acknowledged in its response that Article 6 ECHR applies to the proceedings – but nonetheless requested dismissal. If a Federal Supreme Court dismisses a legal remedy with a substantively indefensible justification, the question arises whether access to justice is still guaranteed.
An ECtHR judgment would have effects far beyond Switzerland. The question of whether illegal media dissemination of intimate information undermines the personality protection of the victim arises in every signatory state of the ECHR. In the age of digital media, where once-published content can no longer be retrieved, the answer to this question is relevant for millions of potentially affected persons. The ECtHR has communicated the complaint and submitted a questionnaire to Switzerland – a procedural step achieved by only a fraction of all complaints.
The ECtHR proceedings stem directly from the precautionary proceedings regarding the book project of the Tamedia journalist. The Cantonal Court Zug had prohibited the publication of personality-violating content, the High Court overturned the measure, the Federal Supreme Court dismissed the appeal. The journalist published the book self-published – and was subsequently convicted of defamation (confirmed in second instance, appealed to the Federal Supreme Court). The irony: Had the Federal Supreme Court granted personality protection, both the book and the resulting criminal proceedings would have been avoidable. The ECtHR must also assess this connection.