Jolanda Spiess-Hegglin in the “Blick”: costs of a dirt campaign

The Cantonal Court of Zug caused a stir with its judgment: It obliged the Ringier publishing house to declare any profits that were made with a smear campaign by the “Blick”. Specifically, it is about five articles that “Blick” wrote from December 2014 on the then Zug politician Jolanda Spiess-Hegglin, because of an alleged “sex affair”. What exactly happened back then and what can be written about it is the subject of further legal proceedings in which the plaintiff Spiess-Hegglin is involved.

The most recent, non-final judgment of the Cantonal Court of Zug raises numerous questions – not least to what extent it can be implemented at all. According to the Civil Code (Article 28), alleged victims of personality violations can not only demand damages and satisfaction, but also the profits made. The basic idea is obvious: Personal violations should not be worthwhile.

So far there have been hardly any judgments – and there are reasons for that

What appears simple at first glance is, however, complex. The injured person, the media victim, doesn’t know any numbers. Anyone who makes demands in a process, however, must provide evidence. Only: How does the plaintiff get the numbers? And how can a newspaper’s profit be assigned to a single article? In general: How is the profit calculated? Can it be calculated at all?

In view of all these open questions, it is not surprising that there have hardly been any judgments so far. A 2006 judgment by the Federal Supreme Court does provide a certain direction as to how the profit is calculated. At that time, the father of tennis player Patty Schnyder complained about the “Sunday look”. This is because the tabloid published several articles about the strained father-daughter relationship, with headlines comparing the parents to the Taliban, among other things.

However, most things remained unclear in this judgment as well, which is why very few of those affected accept the risk of a lengthy process. Not so Jolanda Spiess-Hegglin: She demands the disclosure of all information to determine the prize, such as the number of clicks on the website or the number of newspaper sales. However, it is difficult for a plaintiff to show to what extent the profit results from individual articles. The Zug cantonal court has therefore decided that it is sufficient if the articles were suitable to promote the sales of “Blick” – even if only to get the newspaper circulation.

Assumptions about purchase decisions at the kiosk

With such a soft standard, this requirement for the distribution of profits should usually be met. After all, which personality-destroying article is not suitable for promoting sales? If a media company like Ringier is now obliged to provide figures, the question arises as to how profit is defined. Here the Zug cantonal court makes it clear: profit is not the same as income. The costs can be deducted. If losses are made with the publication, the profit to be skimmed off can also be a saving on losses, i.e. a reduction in losses.

It gets complicated because a newspaper usually consists of several articles. Example kiosk sales: Who bought the newspaper because of the article in question? And who would have bought them out of habit anyway? One does not know. This makes it clear: Calculating profit is not an exact science. It also requires valuations and estimates. At the same time, the media company will claim numerous deductions.

So it can be calculated. The Cantonal Court of Zug has been dealing with the relevance of the data and figures that Jolanda Spiess-Hegglin is demanding from Ringier for several pages. The sometimes very technical explanations of the court show that the road to the effective distribution of profits can be long and difficult. However, the court clearly rebuffed Ringier-Verlag’s objection that the requested data were business secrets: In view of the seriousness of the violations of personality, these interests would have to take a back seat anyway.

This means that Ringier has to determine numbers of so-called “page impressions” (page visits) and “unique clients” (number of devices through which the article was called up) that were registered with “Blick” more than seven years ago. The publisher will hardly be able to do this anymore. If nothing helps because the information is not sufficient, the court can also estimate the profit. And with that you finally leave the ground of secured knowledge.

Better comparisons than lengthy processes

One already suspects it: Procedures for skimming off profits lead to complex calculations and extensive discussions about the relevance of individual profit and loss items, about the amount of estimates and about permissible or inadmissible simplifications of proof. It is understandable, then, that many have shied away from following this path.

The judgment of the Zug Cantonal Court, which will most likely be referred to the Zug Higher Court as the next instance, will probably not change anything. Although the judgment clarifies individual points, it also makes it clear how complicated such procedures can be. Judgments from higher authorities will not change this finding. The road to skimming off profits remains rocky. After all, it is to be hoped and expected that legal clarity will be created in some areas.

Does this verdict change anything for the media workers? Certainly not on a grand scale. Violations of privacy should also be avoided in other ways. If they occur, the claim to the release of profits, which primarily affects the media company, can play a role, but it does not have to. As a rule, the companies will strive for a settlement that includes all conceivable grounds for a claim. The more the court practice specifies the claim for the return of profits, the more likely it is that this will be reflected in higher settlement amounts. Taking legal action, on the other hand, is not really recommended.