“Since a conflict with a work colleague, I have been receiving anonymous, incessant, and threatening WhatsApp messages...”, “A video of me is circulating on social media, with mocking and degrading comments...”, “A Facebook group consists of several people spreading false information about me online...”, “Someone is making purchases in my name on the Internet...”
These are some examples of cyberbullying, a phenomenon that affects people of all ages and can severely impact, even destroy, our social lives. How can one defend against it? Is it possible to have cyberbullying punished? While authorities deliberate on whether to introduce specific penal provisions for this phenomenon, Swiss civil and criminal law already offers some answers.
Civil Law
The quickest legal remedy falls under civil law, notably through the actions provided by Art. 28b CC. These actions are designed for cases of violence, threats, and harassment (both online and offline). In cases of harassment, two conditions must be met: the acts must be repetitive and of a certain intensity. Additionally, these acts must provoke a reaction of fear, distress, or helplessness in the victim. If these conditions are met, three main civil actions are available to you (Art. 28b para. 1, ch. 1 to 3 CC): prohibition of approaching the victim, prohibition of frequenting certain places, and prohibition of contact.
These three actions are not the only options; the judge may impose measures more suited to the situation (e.g., prohibition of publishing insulting or defamatory messages, or measures for protecting marital unions (Art. 172 et seq. CC) or provisional measures during divorce proceedings (Art. 271 CPC)).
Although the civil route is the quickest, it can still be too slow in some situations (at least 3 months). If this is the case, you can request provisional measures (Art. 261 et seq. CPC) or even super-provisional measures (Art. 265 CPC) if there is urgency. For these, simply send a letter to the competent judicial authority. If immediate intervention is required, contact the police.
In all cases, only the victim of harassment has the standing to act. Therefore, if someone in your circle is the target of harassment, do not hesitate to inform them about these civil actions. Moreover, for those who do not wish to confront the perpetrator during the procedure, additional protection can be requested (Art. 156 CPC).
Criminal Law
The Swiss Penal Code does not contain any provisions expressly dedicated to cyberbullying. This does not mean that it is not a crime, nor that it should not be punished. On the contrary, it is behavior that should be firmly condemned and punished.
Cyberbullying can take many forms, and the provision applied will depend on the nature of the harassment act involved. The main offenses include defamation (Art. 173 CP), slander (Art. 174 CP), insult (Art. 177 CP), abusive use of telecommunications equipment (Art. 179septies CP), threats (Art. 180), and coercion (Art. 181 CP). Numerous other offenses are possible depending on the perpetrator's actions. The perpetrator may face a financial penalty or even a custodial sentence of up to several years in the most severe cases. The legislator is even stricter in cases where the perpetrator's behavior affects the victim's sexual integrity.
Cyberbullying primarily affects individuals, but a legal entity can also be considered a victim of this phenomenon. To facilitate the prosecution of the perpetrator, it is advisable to save your messages and take screenshots of problematic publications.
Consultants at the Valentin Legal Consultation (021 351 30 00 or www.cjdv.ch) are available to assist you in your efforts to put an end to the harm you are experiencing.
Article written by Maxime Brenac, lawyer.
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