Anyone who does not remove defamatory content from blog portals hosted by him is liable for infringement of personality rights. This is because anyone can be prosecuted for infringement of personality, even if he only contributed to the creation or development of the infringement. The choice of who he is prosecuted lies with the person whose personality is infringed.

The obligation to remove illegal blog entries thus affects not merely the author but also the one providing the corresponding capabilities. In addition to the obligation to remove the entries, there is also a cost assumption obligation in respect of the court fees. For compensation or satisfaction, however, misconduct is required. This is only the case if no reactive process is implemented by the provider to eliminate personality-infringing content.

Thus, the Federal Court imposes a duty on the legislature to introduce cascading liability in civil liability as well as in criminal law. Thus, the Federal Court throws the ball back to the legislature, which had until then refrained from dealing with this issue in the context of “network crime”, although it has already been pointed out in the report of the Expert Commission “Network Crime” in 2003.

Judgment of the Federal Supreme Court 5A-792/2011 of 14. 1. 2013, available at: polyreg.ch

Network crime – see the closed legislative dossier at: bj.admin.ch