Police officers in focus

Image and video recordings of police operations are no longer a new phenomenon. Are police operations allowed to be filmed without being asked? And may the images subsequently be disseminated on the Internet without being pixilated? Police officers perform a sovereign task and exercise the state's monopoly on the use of force. The reporting of police actions in public is therefore covered by the public interest in information (Art. 28 para. 2 CC). Filming police operations is therefore permitted in principle.

However, there are exceptions to this rule, as evidenced by several court decisions. In 2017, a demonstration in Bern resulted in a fistfight between a group of police officers and a participant in the demonstration. A person filmed this police action from a distance of about 5-10 meters. She was also in police control. Many police members do not want to be filmed for understandable reasons, turn away or look to the ground. The officer in charge recognized a security risk in this behavior of his employees. He demanded that the person filming refrain from filming and delete the recordings, under threat of arrest and seizure of the cell phone. The public prosecutor's office then opened criminal proceedings against the head of operations for abuse of authority and coercion.

From a legal point of view, the police may only prohibit the photographing or filming of a police operation if the person simultaneously commits a criminal offense, for example by obstructing an official act. And only in this case may the possibilities of arrest and seizure of the cell phone be pointed out in the event of refusal. If no criminal offense has been committed, this would be a threat of unlawful consequences and thus an abuse of authority.

In the case mentioned above, it was legitimate for the head of operations to identify a security problem in the footage. The official action taken was permitted. The dismissal of the criminal proceedings against the head of operations was confirmed by the Supreme Court.² In the case of image and film recordings, a distinction must therefore be made as to whether a person actually obstructs the police operation or merely makes recordings as an outsider who is not involved. In the case of recordings by journalists, even higher hurdles are set due to media freedom.

Violation of personality of police officers

Now it happens that after an operation at a demonstration, portrait pictures of a task force together with calls for violence are published on the Internet and then in print media and on television.

Recordings made in the public interest must be limited to capturing the sequence of events. Members of the police may be recognizable as long as they are not particularly emphasized or are only recognizable as "accessories" or "fellow catchers". The right to one's own image is violated if police members are obviously photographed as individual personalities. This is particularly the case with portrait shots taken from a short distance or with a telephoto lens. In other words, portraits are inadmissible if there is no action or no further connection to the subject of the report, i.e. if the picture is only taken to portray the police members themselves. Such violations of personality can be asserted by means of a lawsuit before the civil court. However, police officers must bring this action as private individuals. The proceedings are usually so complex that a lawyer must be consulted. In addition to the lawyer's fees, the court costs must also be paid in advance. A lawsuit of this kind can quickly cost several thousand francs. Moreover, civil proceedings can only be initiated if the defendant is known. This can be an insurmountable hurdle in the case of publications on anonymous websites with servers abroad. The mental and time burden of such civil proceedings should also not be underestimated. If the court comes to the conclusion that there has been an unlawful violation of personality rights, it can order the removal or destruction of the images in question. The court can also order the defendant to pay damages and satisfaction.

Support from the employer?

This is precisely where the question arises as to whether the employer does not have to take action against such violations of personality? The duty of care under labor law is a general legal principle that all employees can invoke. In any case, the employer must ensure that unjustified infringements of the employee's personality do not occur and must support the employee in eliminating existing infringements of personality. Accordingly, legal protection must be granted not only if police officers are prosecuted under criminal law, but also if they have to initiate civil proceedings for violation of personality rights. Here, too, the reference to police activity is given. However, this right to support is not granted in most cantons, so that police members still cannot count on the help of their employer. This circumstance is regrettable and in need of revision. In order to protect the personality of police officers, further measures are also necessary. As food for thought, the consistent use of numbered badges instead of name badges or the general disguising of police officers in pictures and film recordings should be mentioned. It would also be helpful if relevant websites were specifically blocked, as is the case in Germany. This is because civil proceedings cannot be brought against unknown persons, but must be directed against the author or the operator of the website.

In summary, it can be stated that unjustified picture and film recordings as well as their publication on the Internet constitute a violation of personality rights. Existing violations of rights can be remedied in court, but the proceedings are costly and time-consuming. The employer's support services are still backward or non-existent. This must be counteracted, because persistent violations of personality rights are not part of the acceptable occupational risk of police officers.