ECtHR Proceedings

The Core Question: Intimate Sphere as Common Property?

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.

Excessively Formalistic Approach of the Federal Supreme Court

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.

Access to Justice – Article 6 ECHR

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.

Signaling Effect for European Personality Protection

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.

Connection to the Tamedia Complex

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, and the Federal Supreme Court declined to hear the appeal (non-entry). The journalist published the book self-published – and was subsequently convicted of defamation; the conviction became final when the Federal Supreme Court dismissed her appeal (judgment 6B_747/2025 of 2 June 2026). 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.