Facts
The Spinnerei an der Lorze (AG) filed a damages claim against Jean Frey AG, the publisher of the "Weltwoche" magazine, for five articles published between October 1990 and April 1991 which, according to the plaintiff, contained inaccurate, misleading and unnecessarily hurtful information about the company, its products, services and business activities, in violation of Art. 3 let. a UCA. The plaintiff claimed damages of at least CHF 10 million, then CHF 15 million.Considerations
The Federal Tribunal dismissed the plaintiff's appeal. It specified that Art. 42 para. 2 CO, which provides for facilitation of proof of damage, is not intended to exempt the injured party from the obligation to assert and prove, as far as possible and required, the circumstances that allow the existence and extent of the damage to be established. The elements invoked by the injured party must be such as to make it appear almost certain that the alleged damage has actually occurred. The Federal Tribunal also recalled that, within the framework of Art. 42 para. 2 CO, it can only review whether the court of first instance has misunderstood the legal concept of damage or violated the legal principles governing the calculation of damage, but not the factual conclusions drawn by the judge on the basis of the assessment of the evidence.
With regard to the liability of press companies in the event of unfair economic information, the Federal Tribunal ruled that the mere fact that such information may, in…