Personal rights violations encompass any infringement on a person’s personality rights, such as physical and mental health, moral integrity, respect for individual freedoms, or privacy. They thus refer to the entire range of physical, emotional, and social values associated with a person as a whole.
According to Art. 28, para. 1 of the Swiss Civil Code (hereinafter: CC), “Anyone who suffers an unlawful infringement of their personality may take legal action to protect themselves against anyone involved in it.”
Examples of Personal Rights Violations:
Mockery, humiliation, insults
Ignoring or isolating a person
Ridiculing a person, spreading false rumors about them
Assigning absurd, inappropriate, or insulting tasks
Threats or physical violence, assault, sexual harassment
Types of Actions Against Personal Rights Violations
There are two types of actions provided for addressing personal rights violations: defensive actions and remedial actions.
Defensive Actions
According to Art. 28a, para. 1 CC, there are three defensive actions:
Preventive Action: The victim can ask the court to “prohibit an imminent unlawful infringement” (action for prevention of the infringement).
Cessation Action: The victim can request the court to “stop an ongoing infringement” (action for cessation of the infringement).
Declaratory Action: The victim can seek a court declaration “that the infringement is unlawful, if the disturbance it has created persists” (action for declaratory judgment).
In cases of domestic violence, threats, or harassment, Art. 28b CC provides for measures such as:
Prohibiting the perpetrator from approaching the victim “or accessing an area around their residence” (Art. 28b, para. 1, ch. 1 CC).
Prohibiting the perpetrator from “frequenting certain places, such as streets, squares, or neighborhoods” (Art. 28b, para. 1, ch. 2 CC).
Prohibiting the perpetrator from contacting the victim “including by phone, in writing, or electronically, or causing other disturbances” (Art. 28b, para. 1, ch. 3 CC).
Remedial Actions
There are also remedial actions, including:
Action for Damages: [Art. 41 et seq. of the Code of Obligations (hereinafter: CO); Art. 97 et seq. CO]
Conditions: Unlawful infringement of personality, damage, causal relationship, and liability.
Action for Moral Damages: (Art. 29 CC, Art. 47 and 49 CO)
Conditions: Unlawful infringement, severe moral damage, natural and adequate causal relationship, liability, and absence of other forms of compensation.
Action for Disgorgement of Profits:
Conditions: Unlawful infringement of personality, profit, and causal relationship.
Provisional Measures
"Measures that the judge can order following a simplified procedure to ensure the subsequent execution of the judgment, organize a provisional status of the parties, or facilitate the administration of evidence" (Tercier).
The conditions for ordering provisional measures are that the applicant must demonstrate that their personality rights are being infringed or are at risk of being infringed, and that this infringement poses a risk of causing difficult-to-repair harm (Art. 261, para. 1 CPC).
In urgent cases, there are also superprovisional measures that the court can order without hearing the opposing party (Art. 265 CPC). The opposing party may file a preventive brief if they fear that superprovisional measures will be requested against them (Art. 270 CPC).
Measures Against the Media (Art. 266 CPC)
“The court may only order provisional measures against a periodic media outlet under the following conditions: the infringement is imminent and likely to cause particularly serious harm; the infringement is manifestly unjustified; and the measure does not appear to be disproportionate.”
Right of Reply (Art. 28g to 28l CC)
The right of reply allows a person directly affected in their personality to respond to the presentation of facts concerning them by periodic media (Art. 28g, para. 1 CC).
However, the following conditions must be met:
The person is directly affected in their personality.
The person is affected by the presentation of facts concerning them.
The presentation of facts originates from a periodic media outlet.
For more information on this subject, the Valentin Legal Consultation would be happy to advise you at their offices located at 1 Rue du Valentin, 1004 Lausanne, to answer any questions you may have.
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