Facts
The case concerns a journalist, F., who took a photo of H. in front of the door of his house, despite H.'s refusal to be photographed. The photo was taken as part of a report for a newspaper. H. filed a complaint against F. for violation of the private or secret sphere using a viewing device, under Article 179quater of the Swiss Criminal Code (SCC).
The facts took place on July 1, 1989, when F. presented himself in front of H.'s house to take photos and conduct an interview. H. refused to answer his questions and asked F. to leave. F. took a photo of H. in front of the door of his house, despite his refusal.
The court of first instance convicted F. for violation of the private or secret sphere using a viewing device, under Article 179quater SCC. The decision was confirmed by the court of appeal.
Considerations
The Federal Court examined the question of whether the photo taken by F. constituted a violation of H.'s private or secret sphere. The Court considered that the photo had been taken in a space that was part of H.'s private sphere, namely in front of the door of his house.
The Court recalled that the protected sphere under Article 179quater SCC includes not only the space inside the house, but also the immediate surroundings that are considered part of the space belonging to the house. The Court considered that the fact that H. was standing in front of the door of his house, without wanting to be photographed, constituted a fact that fell within the private sphere and could not be perceived without further ado by anyone in…