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. The court prioritizes freedom of the press over personality protection and permits the book publication.
The Federal Supreme Court dismisses Spiess-Hegglin's appeal. It justifies this by stating that the affected information was already generally known. Thus, Spiess-Hegglin's intimate sphere is effectively declared as common property – based on the logic that years of court proceedings and illegally distributed files had created a separate public knowledge. This claim is later refuted in an expert opinion by a media professor. An analysis in AJP 9/2022 concludes that the irreparable disadvantage was set forth in the appeal and the justification for dismissal is to be classified as excessively formalistic.
Spiess-Hegglin requests a revision of the decision from the Federal Supreme Court because the listing of "irreparable disadvantages" spanning over six pages was not considered. The Federal Supreme Court rejects the revision request – processed and denied by the same SVP judge who had declined to rule on the appeal two months earlier.
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 ECtHR accepts the complaint, clearing the high bar (98.5 percent of complaints are rejected).
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 Federal Supreme Court effectively affirmed this by dismissing the appeal – on the grounds that the affected information was "generally known." 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 Federal Supreme Court has denied.
The Federal Supreme Court justified its dismissal 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. The revision request was rejected by the same judge who had already issued the dismissal.
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 subsequently faced defamation charges. 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.