Facts
The case concerns Willy Schnyder, father of tennis player Patty Schnyder, who brought an action against Ringier AG and Beat Kraushaar due to the publication of articles in the Sonntagsblick newspaper, which he claimed infringed his personality. The articles in question concerned the relationship between Willy Schnyder and his daughter, as well as allegations of financial malfeasance. The Zurich district court partially admitted the claim, condemning Ringier AG to publish a judgment and remove the incriminated articles from its website. The Obergericht of the canton of Zurich also partially admitted the appeal, confirming the infringement of Willy Schnyder's personality and ordering the publication of a judgment.
Willy Schnyder filed an appeal with the Federal Court, requesting compensation for the gain made by Ringier AG through the incriminated articles, as well as damages. The Federal Court partially admitted the appeal, considering that compensation for gain was possible even in the absence of direct evidence of a gain made.
Considerations
2. Compensation for gain
The Federal Court considered that compensation for gain was possible under Article 28a para. 3 CC, which allows for compensation for gain made by the defendant in case of personality infringement. The Court estimated that compensation for gain does not suppose an interested management in bad faith and can be cumulative with the right to damages.
2.1 The nature of compensation for gain
The Court considered that compensation for gain aims to absorb the financial benefits made by the defendant due to the personality infringement, and not to restore the status quo ante. Compensation for gain can take the form of a condemnation to pay a sum of money corresponding to the gain made.
2.2 The cumulativity of compensation for gain and damages
The Court estimated that compensation for gain and damages can be cumulative, as they aim to repair different damages. Compensation for gain aims to absorb the financial benefits made by the defendant, while damages aim to repair the damage suffered by the claimant.
3. Determination of gain
The Court considered that the determination of the gain made by the defendant must be made based on criteria such as the gravity of the personality infringement, the subjective motivation of the media, and…