Liability of the editor for failure to oppose a publication constituting a criminal offense

Facts

In May 2000, the magazine "L'Inchiesta" published an unsigned article containing statements about A. and B. that they considered defamatory. A. and B. therefore filed criminal complaints with a private prosecution against the responsible editor C. and unknown persons for offenses against honor. Subsequently, the magazine published other articles that led to further private prosecutions by D. and E. against C.

C. refused to reveal the identity of the authors of the articles, invoking the right not to testify provided for in Art. 27bis of the Swiss Criminal Code (CP). The Public Prosecutor therefore proposed the conviction of C. for repeated failure to oppose punishable publications, pursuant to Art. 322bis CP.

Considerations

The Federal Court upheld C.'s appeal against the cantonal judgment that had convicted him. According to the Court, Art. 322bis CP, which punishes the failure to oppose a publication constituting a criminal offense, must be interpreted in close relation to the offense of defamation under Art. 173 CP. This means that the person responsible under Art. 322bis CP must have the possibility to provide the exculpatory proof of truth or good faith, under the same conditions as for the offense of defamation.

The Court also clarified that, for offenses prosecutable only on complaint,…