Provider liability: VISCHER to achieve a landmark acquittal

5 June 2024

In a landmark judgment (defamation case) of earlier this year, the District Court of Visp/Valais acquitted the managing director of a leading Swiss hosting provider and domain registrar.

The private claimants considered their honor to be violated by various statements made on a specific website. The criminal complaint filed by the private claimants was directed not only against the author of the statements, but also against the managing director of the respective Swiss domain registrar at the time. The managing director was accused of multiple counts of aiding defamation.

The Public Prosecutor of the Canton of Valais found the managing director guilty, and issued a summary penalty order on him. On appeal, the District Court of Visp has overturned the summary penalty order and acquitted the accused.

Following the arguments of the defense, the District Court of Visp held that the criminal authorities had never issued a legally sufficient blocking order which would have established a duty to act on the part of the domain registrar (takedown). The private claimants (and also the Public Prosecutor) took the position that the respective domain registrar should have carried out the blocking even without such an order.

Case law is very rare in this context. The judgment (which is meanwhile legally binding) is groundbreaking for the industry and contributes to legal certainty. It confirms that under Swiss law, providers do not have a general monitoring obligation, and that in situations like the one at hand, they are only obliged to take a site down if a legally sufficient blocking order has been issued. The judgment can be seen as a confirmation of the established Swico industry codes (Code of Conduct Hosting; Code of Conduct Domain Names; Guidelines for Requests from Authorities).

The managing director was defended by our Counsel Jonas D. Gassmann and our Partner Rolf Auf der Maur.

Author: Jonas D. Gassmann