Return of Profits in Cases of Personality Infringement by the Media – A Landmark Ruling From Switzerland With International Impact

When media outlets cross the red (legal) line in their pursuit of clicks at the expense of individual privacy, false or misleading media coverage may have substantial financial consequences. A recent decision by the High Court of the Canton of Zug marks a turning point in Swiss Media Law – and has implications for other jurisdictions. For the first time, a Swiss court has endorsed a practical methodology for calculating the profits to be returned to the injured party, following unlawful infringements of personality rights by the media. The new jurisdiction is based on a statutory remedy in the Swiss Code of Obligations (SCO) and Swiss Civil Code (SCC) that had remained largely ineffective in respect of media law for decades. In the first ever case applying this approach, the media outlet in question was ordered to return profits amounting to an average of CHF35,000 (around EUR37,000) for each unlawful article.

In some jurisdictions, statutory provisions or case law allow victims of (media-related) infringements of personality rights to recover the profits generated by unlawful media reporting. In Switzerland, this remedy has existed since 1 July 1985 under Article 28a (3) of the SCC. Article 28a (3) of the SCC provides that an injured party may claim not only damages and satisfaction but also the return of profits, in accordance with the provisions governing agency without authority (Geschäftsführung ohne Auftrag) under Article 423 of the Swiss Code of Obligations (SCO). The purpose of the return of profits is not to compensate the injured party for the loss suffered, but to prevent the offender from retaining the economic benefit obtained through the infringement of personality rights. This reflects the function of so-called “Agency without Authority” (Geschäftsführung ohne Aufrag) under Article 423 of the SCO.

The claim for the return of profits under Article 28a (3) of the SCC remained a “dead letter” and was practically unapplied for 40 years in the context of media-related infringements of personality rights. This was mainly due to the absence of a judicially recognised methodology for calculating the profits to be returned. On 22 January 2025, an earthquake shook the Swiss media landscape. On that date, the Cantonal Court of Zug issued the first judgment (Case No A1 2020 56) setting out a mathematical methodology to calculate the profits to be returned. In these proceedings, Zulauf Legal represented the claimant, Jolanda Spiess-Hegglin, in her action against the publisher Ringier AG (hereinafter “the publisher”).

The publisher appealed the judgment of the Cantonal Court of Zug. In the judgment of 19 June 2026 (Case No Z1 2025 4), the High Court of the Canton of Zug upheld the claimant’s proposed methodology for calculating the profits generated by online and print publications (at the time of writing, the judgment is not yet final and subject to appeal before the Swiss Federal Supreme Court). The following discussion therefore focuses primarily on the detailed reasoning of the First Instance Court, as endorsed by the High Court of the Canton of Zug, regarding the methodology that will be applied in the future in return of profits claims.

The judgment is potentially one of the most important Swiss media law decisions of recent decades, if not the most important one. It fundamentally changes the economic consequences of a media outlet infringing personality rights. Media professionals and publishers now not only face the legal consequence of compensation for damages and moral satisfaction but also the return of profits. The latter will – in many cases – potentially be more economically consequential.

The Spiess-Hegglin case: unlawful infringement of personality rights

On 24 December 2014, the Swiss tabloid newspaper Blick published, on the front page of its print edition, the name and photograph of Jolanda Spiess-Hegglin, then a newly elected member of the Cantonal Parliament representing the Green Party, and publicly raised the question of whether she had been sexually assaulted at a political event a few days earlier. What factually occurred at that event on 20 December 2014 has never been legally established. Under the rules protecting victims of crime, the name and photograph of this local politician – until then nationally completely unknown – should not have been published.

What happened thereafter is of particular significance. Blick subsequently published countless headlines featuring Jolanda Spiess-Hegglin’s name and photograph. In total, the publisher produced 167 articles relating to the matter, most of them containing sexual allusions and some including entirely fabricated allegations. The incident developed into a media spectacle and became the defining tragedy of the Spiess-Hegglin family’s life. Jolanda Spiess-Hegglin lost her party membership, her political office and her reputation. She became the target of online stalking and, to this very day, remains exposed to hate speech and online abuse.

In an initial partial judgment, the publisher of Blick Print (Blick, Blick am Abend) and Blick Online (blick.ch) was held liable for four articles published in 2014 and 2015 that unlawfully infringed Jolanda Spiess-Hegglin’s personality rights. As noted above, those four articles formed part of a broader campaign comprising 167 publications concerning the claimant. The absence of any case law recognising a concrete methodology for calculating the profits to be returned presented a significant litigation risk. The claimant therefore decided not to pursue the return of profits in respect of the entire media campaign, instead limiting her claim to the profits generated by four articles. In doing so, she intended to establish a judicial precedent that could serve as guidance for future victims of unlawful media reporting in Switzerland.

Starting point for the return of profits derived from media publications

The media regard themselves as the “watchdogs of democracy”, a role that is both important and widely recognised. The economic reality, however, is considerably more sobering. From a publisher’s perspective, media articles are a means to an end: news content serves to generate public attention, and that attention is sold to advertisers seeking access to media audiences in order to market their products and services. Publishers create these customer contacts through advertising displayed alongside online content or printed articles.

Particularly in the tabloid sector, publishers must ensure that their publications remain sufficiently attractive in terms of circulation, readership and reach to justify the advertising rates they charge. In both print and online media, this objective is achieved largely through a small number of “top stories” published each day. These are the stories that capture the public’s curiosity and keep readers engaged as subscribers, purchasers or online users. The courts have now established that where such attention-grabbing stories cross the line into unlawful infringements of personality rights, the advertising revenue generated by those publications may be subject to return in favour of the injured party.

Revenue streams

In the landmark judgment referred to above, the Cantonal Court of Zug first determined the extent of the revenue, or gross profit, generated by the publisher through the publication of an article infringing personality rights (Case No A1 2020 56, paragraph 6.4.1). The court calculated the contribution of the article in question to the publisher’s overall revenue. The latter comprised three distinct revenue streams:

• online advertising revenue – advertising revenue generated by Blick Online (blick.ch), based on page impressions, the value of which depends, inter alia, on the number of advertising impressions and the price charged for the advertising inventory made available;
• print advertising revenue – advertising revenue generated by the print editions of Blick Print (Blick and Blick am Abend), essentially calculated by multiplying the advertising space sold by the applicable advertising rate; and
• sales revenue – revenue generated from single-copy sales of the print edition of Blick, multiplied by the applicable sales price.

In a second step, the Cantonal Court deducted the relevant costs, namely editorial costs, from the calculated revenue (gross profit) in order to determine the net profit (Case No A1 2020 56, paragraph 6.4.2).

The injured party is ultimately entitled to the return of that net revenue, or net profit.

Methodology for calculating online advertising revenue

The Cantonal Court of Zug calculated the online advertising revenue generated by Blick Online (blick.ch) using the following formula:

Page impressions × advertising impressions (ad impressions or ad views) × price per delivered advertisement (Case No A1 2020 56, paragraph 7.1.1).

In an earlier partial judgment of 22 June 2022, rendered in the context of the legal proceeding brought by Jolanda Spiess-Hegglin, the Cantonal Court had ordered the publisher to disclose all information required to estimate and determine the profits generated by the publication of the four articles found to infringe personality rights, including the page impressions for each individual article.

The number of advertising impressions and the price per delivered advertisement were disputed before the Cantonal Court of Zug. To establish these figures, Jolanda Spiess-Hegglin relied on screenshots of the relevant articles showing the advertising placements, together with the publisher’s publicly available advertising rate card. With regard to the number of advertising placements, Jolanda Spiess-Hegglin estimated how many advertisements had been sold directly by the publisher and therefore generated substantial advertising revenue, as opposed to low-yield remaining inventory or Google Ads. Based on these figures, the revenue could be calculated using the above formula.

The publisher argued that the advertisements displayed alongside the articles had not been sold specifically in contemplation of the infringing publications and that the necessary causal link was therefore absent.

The Cantonal Court rejected that argument. It held that, for the purposes of return of profits, it is not necessary for the revenue to have been generated solely as a result of the unlawful publication, provided that the article could contribute to the promotion of sales. The concept of cause, the court explained, must be understood in an abstract sense. Accordingly, profits are subject to return whenever they are generated in connection with the publication of an unlawful article.

Consequently, advertising space sold independently of the specific content of a future publication must nevertheless be taken into account when calculating the profits to be returned, provided that such advertising contributes to the publisher’s overall revenue.

Methodology for calculating print advertising revenue

Calculating print advertising revenue is considerably more complex than calculating online advertising revenue. Jolanda Spiess-Hegglin therefore raised the following question: what economic value should be attributed to an individual article published in a printed newspaper, and what proportion of the profits generated by the corresponding daily edition should be allocated to that article?

It was clear that the value of an article could not be determined solely on the basis of the physical space it occupied on a newspaper page. Such an approach would disregard the factors of “size, presentation and positioning of the publication” as well as its “capacity to increase or maintain profits”, which the Swiss Federal Supreme Court had previously identified as generally relevant in return of profit cases (BGE 133 III 153).

The Cantonal Court of Zug therefore calculated the print advertising revenue generated by Blick Print (Blick and Blick am Abend) largely in accordance with a so-called “weighted calculation model”, the application of which had been proposed by Jolanda Spiess-Hegglin and developed in collaboration with three digital experts (Case No A1 2020 56, 5, paragraphs 7.2.2 et seq). The model makes it possible to determine both the economic value of an individual article infringing personality rights in a printed newspaper and the weighted proportion of the total advertising revenue of the corresponding daily edition attributable to that article.

The Cantonal Court of Zug found it established that, in the tabloid press, the placement and presentation of an article, and particularly its appearance on the front page, are of considerable economic significance. The publisher disputed this argument. However, the publisher’s own advertising rate card demonstrated otherwise: for example, the price of a banner advertisement on the front page is almost twice as high as that of a comparable advertisement in the inside pages of the newspaper.

Jolanda Spiess-Hegglin’s calculation model operated as follows: the articles infringing personality rights, together with all other principal editorial articles contained in the relevant daily edition, were assigned a weighting score based on the criteria of front-page references, page layout, size and placement. The higher the score attributed to an individual article, the greater the proportion of the total advertising revenue that could be allocated to that article (see the tables in Judgment Case No A1 2020 56, 5, paragraph 7.2.3.2 et seq).

Finally, the total score attributed to all relevant articles was compared with the total advertising revenue generated by the corresponding daily edition, resulting in a revenue value per point. That value was then multiplied by the number of points attributed to the article infringing personality rights to determine the share of advertising revenue attributable to that publication.

Calculation of sales revenue

The Cantonal Court of Zug calculated the revenue generated from single-copy sales of the print edition of Blick Print using the following formula:

Number of single-copy sales × newspaper sales earned by Publisher (Case No A1 2020 56, paragraph 7.3.1).

Once again, the Cantonal Court of Zug applied the concept of abstract causation, holding that the articles infringing personality rights were capable of satisfying the expectations of tabloid readers over an extended period and thereby retaining that readership.

As with print advertising revenue, circulation revenue was allocated proportionately in accordance with the claimant’s weighted calculation model.

Gross profit minus deductible editorial costs

The claim for return of profits under Article 28a (3) of the SCC in conjunction with Article 423 (1) of the SCO is directed at the net profit level (as net profit). Accordingly, the Cantonal Court of Zug deducted from the revenue, or gross profit, those costs that had been incurred by the publisher in generating the relevant profits (Case No A1 2020 56, paragraphs 6.4.2 and 8; see also Federal Court Decision 134 III 306).

The principal issue in dispute was which costs can be deducted. According to the Swiss Federal Supreme Court, only costs that are closely linked to the infringing product – in this case, the publications infringing personality rights – may be deducted when calculating the profits to be returned (Federal Court Decision 4A_305/2007 of 3 March 2008, paragraph 4.1.4).

Accordingly, only direct costs incurred specifically in producing the infringing article are deductible. Most costs are therefore excluded. This applies in particular to fixed costs and overheads, which, by their nature, also serve “other purposes”. Such costs include, in particular, machinery, maintenance, premises and personnel costs incurred in the production process. Likewise, sales and marketing expenses, as well as transport and distribution costs, will generally not qualify as deductible costs (Patrick Kohler, Berechnung des Verletzergewinns bei gut- und bösgläubigen Immaterialgüterrechtsverletzungen, sic!, 2008, pp 564 et seq, at p 566).

The Cantonal Court of Zug estimated at its discretion, pursuant to Article 42 (2) of the CO, the proportion of the editorial costs attributable to each individual article infringing personality rights for each print edition of Blick Print (Blick and Blick am Abend) and for each day’s online edition of Blick Online (blick.ch). In doing so, the court once again relied on the value attributed to each article under Jolanda Spiess-Hegglin’s weighted calculation model.

The publisher’s alternative “incremental profit” methodology (Mehrgewinnmethode) was rejected in this respect as well. This methodology is discussed in the following section.

Methodology confirmed on appeal

On appeal, the publisher’s “incremental profit” methodology was likewise rejected. That methodology is based on the difference theory (Differenztheorie), which the Swiss Federal Supreme Court has developed as the general approach to the assessment of damages. Under this approach, the profit attributable to the unlawful conduct is determined by comparing the infringer’s actual financial position with the hypothetical financial position that would have existed had the infringing act or publication not occurred.

The High Court of the Canton of Zug emphasised that its endorsement of Jolanda Spiess-Hegglin’s methodology should not be understood as a departure from the difference theory as a matter of principle. Rather, it held that, in cases involving unlawful infringements of personality rights by the media, it is generally not possible to establish such a hypothetical comparison with mathematical precision. In those circumstances, an estimate based on judicial discretion is indispensable, by analogy with Article 42 (2) of the CO.

In making such an estimate, the court held that the Cantonal Court of Zug had correctly focused on the publisher’s commercial interest in the articles at issue. In line with the case law of the Swiss Federal Supreme Court, factors such as turnover, circulation and readership figures may be relevant, but particular weight should also be given to the size, presentation and positioning of the publication. For these reasons, the High Court of the Canton of Zug concluded that it was appropriate to apply the claimant’s weighted calculation model.

By contrast, applying its incremental profit methodology, the publisher had calculated the profit generated by the four articles in question to be only CHF4,916 (around EUR5,328). In its judgment of 19 June 2026, however, the High Court of the Canton of Zug assessed the profits to be returned at approximately 27 times the amount calculated by the publisher and awarded Jolanda Spiess-Hegglin CHF139,228, together with default interest at 5% per annum running from 2014 to 2015,.

Conclusion: wrongdoing should not pay off

The Spiess-Hegglin case marks a turning point in Swiss Media Law. For the first time, cantonal courts have demonstrated how the statutory claim for return of profits, under Article 28a (3) of the SCC in conjunction with Article 423 of the SCO, can be applied in practice. However, the judgments of the Cantonal Court and the High Court of the Canton of Zug do more than establish an important precedent for future litigation: they also give practical effect, for the first time, to a statutory remedy in Swiss law that was largely unenforceable in the past. The courts have made it clear that the return of profits should not fail merely because the precise impact of an individual media publication on readership, advertising revenue or circulation cannot, by its very nature, be established with mathematical certainty.

Whether the Swiss Federal Supreme Court will endorse this methodology in the present case or in future cases remains to be seen. What is already clear, however, is that the Zug judgments have fundamentally reshaped the debate on the economic consequences of unlawful media infringements of personality rights. Going forward, serious infringements of personality rights will no longer only raise questions regarding damages and compensation for moral harm, but also regarding whether the infringer has derived an economic benefit from the unlawful publication and, if so, whether that benefit should be allowed to remain with the infringer.

The underlying principle is both simple and timeless: no one should be permitted to enrich themselves at the expense of another by exploiting or infringing that person’s or company’s rights for commercial gain. Put simply: wrongdoing should not pay off!