Victim Residing Abroad Suffering a Violation of Personality by a Perpetrator Living in Switzerland – What Can Be Done?

A violation of personality is an unlawful act sanctioned both civilly and criminally under Swiss law. Thus, for example, in cases of threats, harassment, or dissemination of defamatory statements, a person may, under Swiss law, request the judge to order a range of measures adapted to the specific situation. The relevant provisions of Swiss law are Articles 28 et seq. of the Swiss Civil Code (CC) and Articles 261 et seq. of the Swiss Code of Civil Procedure (CPC).

This article addresses the civil aspect of such a situation where the victim of the violation resides abroad while the perpetrator resides in Switzerland. In particular, the following analysis deals with cases of violations of personality through the internet, notably when the perpetrator threatens, harasses, or publishes defamatory statements on social media.

First of all, the following question arises: where should one bring the action? In Switzerland, the international jurisdiction of the courts may be governed by two distinct sources depending on the country of residence of the victim: the Lugano Convention of 30 October 2007 (LC, RS 0.275.12) when the victim resides in a State that is a party to this Convention, or the Federal Act on Private International Law of 18 December 1987 (PILA, RS 291) in other cases.

The Lugano Convention provides for two alternative forums. First, it establishes the principle of the defendant’s domicile as the forum (Art. 2 LC), which always applies unless otherwise provided. Article 5(3) LC provides an alternative forum in matters relating to tort, delict, or quasi-delict. It gives jurisdiction to the courts of the place where the harmful event occurred or may occur.

Under the PILA, as regards jurisdiction in cases of unlawful acts, the general rule grants jurisdiction to the Swiss courts of the defendant’s domicile or, failing that, habitual residence. It also provides that the Swiss courts of the place of the act or the place where the result occurred, as well as those of the place of the establishment in Switzerland (for actions relating to its activity), are also competent. The PILA also contains special rules departing from the general principle (Arts. 130–131 PILA).

Thus, whether the Lugano Convention or the PILA applies, the jurisdiction of Swiss courts is established as soon as the perpetrator of the violation is domiciled in Switzerland.

As for the applicable law, Articles 132–142 PILA govern this issue. Article 132 PILA enshrines the principle of party autonomy, allowing the parties to choose the applicable law after the damaging event. In the absence of such an agreement, Article 133 PILA sets out a cascading system to determine the applicable law when the situation does not fall under one of the specific cases provided for in Articles 134–142 PILA.

In cases of violation of personality through the media, Article 139 PILA allows the injured party to choose between:

1. the law of the State of their habitual residence, if the perpetrator could have foreseen that the result would occur there;

2. the law of the State where the perpetrator has their establishment or habitual residence; or

3. the law of the State where the result occurred, if the perpetrator could have foreseen that the result would occur there.

The qualification of the internet as a medium is not disputed in Swiss legal doctrine. The internet is indeed a medium within the meaning of Article 139 PILA. Consequently, the applicable law for claims arising from violations committed through social networks or other online platforms is, in the absence of an agreement between the parties, determined under Article 139 PILA.

The first two options generally pose no difficulty in identifying the potentially applicable law—it will either be the law of the victim’s State of residence or Swiss law, the State of habitual residence of the perpetrator. The issue of foreseeability in the first hypothesis may, however, be delicate. The third option, concerning the place where the result occurs, is more complex and controversial in cases of online violations. This difficulty is compounded by the criterion of foreseeability. As this article aims to remain brief and straightforward, these complexities will not be addressed here.