Twitter user's name

On May 19 2014 the Uster District Court, in the Canton of Zurich, convicted a Twitter user and blogger of race discrimination pursuant to Article 261bis of the Criminal Code. The tweet which led to the conviction stated: "Maybe we need a new Kristallnacht. This time for Mosques" (translated from the original German).

During the oral hearing, journalists were informed – without advance notice – that disclosure of the Twitter user's name, age and other specified information in any media coverage of the criminal proceeding was prohibited. Non-compliance would be penalised.

Newspapers NZZ and Tagesanzeiger appealed the order. The appeal was partly approved by the Zurich Superior Court on March 31 2015. The superior court held that the legal basis on which the district court founded its prohibition order was incorrect. The district court was therefore not permitted to prohibit the disclosure of the name and age of the Twitter user in the newspapers. However, the prohibition to disclose his domicile, employer's name and the domain name from which he published regular blogs was upheld. The superior court also upheld the prohibition to print pictures of the Twitter user in the newspapers.

Relative figure of contemporary history

The superior court held that the Twitter user was a relative figure of contemporary history under Swiss personality rights law. Absolute figures of contemporary history are famous individuals, while relative figures of contemporary history are individuals who have attracted public interest because of a specific event. Unlike 'normal' citizens, relative figures of contemporary history must tolerate certain interferences in their personality rights - in this case the disclosure of his name and age in the press.

The superior court held that the Twitter user had become a figure of relative public interest due to:

  • his provocative tweets;
  • the (ongoing) criminal proceeding;
  • the blog articles concerning political topics (with full disclosure of his name); and
  • a two-page interview in Tagesanzeiger published at the beginning of 2013, which included his name and picture.

In particular, the superior court argued that criminal proceedings due to race discrimination regularly attract public interest. In this case, the public interest increased because of the use of the term 'Kristallnacht' in connection with mosques.

However, the interview in Tagesanzeiger was likely part of a settlement between the accused Twitter user and the newspaper, because of claimed personality right infringements. It is therefore questionable whether such an interview made the accused a relative figure of contemporary history.

No basis for media coverage restrictions

The superior court held that the legal basis on which the district court justified its prohibitions was incorrect.

The Federal Criminal Procedure Act does not allow for the restriction of media coverage of public hearings. In this case, the Uster District Court hearing was obviously public and, due to significant interest, had to be broadcast by video to an additional courtroom. Nonetheless, the Uster District Court justified its prohibition orders on Article 70 of the act, which deals with the full or partial exclusion of the public. As the public was not excluded in this case, Article 70 clearly did not apply.

However, the superior court held that the prohibition to disclose information other than name and age was justified based on the Ordinance on the Inspection of Records of the Canton of Zurich. Section 11(2) of the ordinance states that media coverage of court proceedings must be objectively appropriate and consider the legitimate interests of the parties involved. In particular, any kind of prejudicial, compromising or suggestive media coverage must be avoided.

Pursuant to the superior court, the ordinance was sufficient to justify an insubstantial intervention into the freedom of press.

For further information on this topic, please contact Clara-Ann Gordon or Michael Reinle at Pestalozzi Attorneys at Law by telephone (+41 44 217 91 11) or email (clara-ann.gordon@pestalozzilaw.com ormichael.reinle@pestalozzilaw.com). The Pestalozzi website can be accessed at www.pestalozzilaw.com.

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