Banking secrecy versus freedom of the press

According to critics, Switzerland is violating the European Convention on Human Rights because it gives greater weight to banking secrecy than freedom of the media. The Economic Commission of the National Council is now asking the Federal Council to clarify the need for action.

A data leak at Credit Suisse caused a stir this year.

Michael Buholzer / Keystone

From time to time, an international network of journalists receives data about suspected dubious bank customers. This February had that network published reports on leaked data from more than 18,000 former or current Credit Suisse client accounts via dozens of media channels worldwide. Corrupt autocrats, drug dealers and many other suspected criminals are said to have found refuge at the bank. According to the bank at the time, most of the verified accounts were closed, with many having been closed before 2015.

Not only the bank was in the pillory, but also the Swiss legal framework. Because the Swiss media partner of the journalist network, the Tamedia Group, had reported on the case like the other media involved, but at the same time presented itself as a victim – with the indication that they had not participated in the research due to criminal concerns. This five-and-a-half tactic had the expected effect: Switzerland came under international fire for allegedly giving greater priority to banking secrecy than freedom of the press.

assessment on a case-by-case basis

The stumbling block was a tightening of the banking law that has been in force since 2015. According to the law, breaches of banking secrecy are punishable by “imprisonment of up to three years or a fine”. Since 2015, this threat of punishment has not only applied to actors such as bank employees who steal and pass on bank data, but also to people who “disclose” the data they have received to other people. With the tightening, Parliament wanted to criminalize the resale of stolen data to third parties. The focus was not on the media, but the wording adopted also included the media, as was clear from the parliamentary deliberations at the time.

So have journalists ever been sentenced to prison if they use anonymous bank customer data in reports? There are possible excuses for the media, as the then Justice Minister Eveline Widmer-Schlumpf stated during the 2014 legislative deliberations in Parliament. In each case, an examination of the individual case should be carried out. Journalists can invoke legitimate interests – such as the democratic interest in informing the public about dubious machinations by politicians and other public figures – to justify breaches of banking secrecy.

According to judgments of federal court the justification of protecting legitimate interests presupposes that the act is a necessary and appropriate means to achieve the legitimate goal. In the context of bank secrecy and the media, for example, this would mean that no less far-reaching act is similarly effective – such as handing over bank details to the authorities or limiting reporting to bank names and case types without specific customer names.

According to a judge who was interviewed, journalists would hardly ever have to face a prison sentence if they could only show some degree of public interest in a publication. And in the worst case, a fine may be used in the media industry more as an award than as a punishment. However, the outcome of criminal law proceedings is difficult to predict in individual cases. And the prospect of a possible criminal record entry is probably not fun for many potentially affected.

Critical UN rapporteur

Irene Khan, the UN rapporteur on human rights and freedom of expression, didn’t find it funny either. She threw out Switzerland in March in a six-sided Write argued that the “criminalization” of the dissemination of information by whistleblowers and journalists violated international law. Specifically, according to Khan, the Swiss legal framework should be against Article 10 of the European Convention on Human Rights (freedom of expression) and also against Article 19 of the international covenant on civil and political rights violated

However, it cannot be conclusively predicted whether Switzerland would be convicted by the European Court of Human Rights in a legal case. Switzerland declared in reply letter three things in particular from the end of April: the protection of media freedom is considered fundamentally important, the criticized passage of the law has not, to the knowledge of the Federal Council, led to any criminal proceedings against media representatives, and the Economic Commission of the National Council has announced that it will look into the matter.

Now there is a first decision by the National Council Commission. She had two submitted from the left parliamentary initiatives before, which demanded a change in the law – by deleting the controversial passage or by anchoring an exception for the press. The Commission did not want to go that far for the time being and decided loudly Message from Tuesday for an intermediate step: she decided with 13 to 11 votes Motion which requires the Federal Council to examine a change in the law and, if action is identified, to submit a specific proposal to Parliament. The majority came about with votes from the Left, the Green Liberals and the FDP. The latter is piquant: At the beginning of the controversial passage in the law from 2015 there was an application from the FDP.

As a result of the adoption of the aforementioned motion, the two parliamentary initiatives were withdrawn. The National Council Commission has thus thrown the hot potato to the Federal Council. The recourse to the Federal Council is ironic, because the controversial passage was passed at the request of Parliament and not at the request of the government. The content assessment is meanwhile not trivial. Media freedom is a central element of a functioning democracy, but journalists, like all other professionals, are driven by private interests that are by no means always congruent with public interests. The passage in the law that has been criticized may have more symbolic than practical significance as a restriction on media freedom, but this is not entirely clear in the absence of case law.

Unclear demarcation

It also needs to be asked whether a special guard rail for the media with regard to bank customer data makes any sense at all or whether the matter should not in principle be viewed in a similar way to the publication of other sensitive private data, for example on the state of health of people. From a marketing point of view, the passage in question in the banking law is unfortunate for Switzerland. According to a lawyer interviewed, the assessment under international law is not entirely conclusive; freedom of the media is not absolute, and protection of privacy also plays an important role.

The initiatives discussed speak of freedom of the press and not freedom of the media. In the age of online media, this seems odd. On the other hand, according to one observer, the question is whether an individual blogger without a broad audience should be viewed in the same way as a mass medium. Be that as it may: If both chambers of parliament accept the motion of the National Council Commission, the Federal Council must deal with the matter in detail.

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