Privacy: a controversial fundamental right

According to the current Federal Constitution (Art. 13), the protection of privacy is one of the fundamental rights of all people living in Switzerland. This includes respect for private and family life, protection against misuse of personal data and maintenance of postal and telecommunications secrecy.

As a fundamental right, the protection of privacy is a new phenomenon that was only incorporated into the federal constitution in 1999. However, as a widely recognized model, the idea is older. It goes back to the 19th century. At the time, the privacy guarantee was closely tied to the idea of ​​the Republican citizen. Privacy protected the free citizen from the encroachment of a strong (meaning: authoritarian, absolutist) state.

So defined Meyer’s Konversationslexikon of 1889 used the term “private” as “that which is against public life” or in reference to the sphere of private economics as opposed to “state economics” or “public economics”. Civil liberties, which emerged in response to the rising power of absolutist states, have traditionally been closely linked to the protection of privacy.

The history of the modern federal state and the expansion of its powers in Switzerland have repeatedly come into conflict with the civil right to privacy. An example of this is the tax system in Helvetic, even before the establishment of the federal state in 1848. The attempt to set up a modern tax and levy system failed at the beginning of the 19th century, not least because of a radical idea of ​​​civil tax secrecy.

In the Basel area, for example, the governor was only allowed to set up a box when collecting taxes, but was not allowed to check what amount the taxpayer deposited in it. The taxes were filed in a sealed envelope without the officials seeing them. Anyone who entered the correct amount of tax was apparently the laughingstock of their fellow citizens. Countless counterfeit coins regularly ended up in the box.

It is therefore no coincidence that the federal constitution of 1848 only had to settle a conflict between the state and the private sphere in one area: the postal service. The constitution strengthened the position of private individuals and guaranteed the “inviolability of postal secrecy”.

The high value that civil society has attached to the protection of private life since the 19th century is reflected, for example, in various professional secrets that were enshrined in law, particularly in civil professions. Medical secrecy protected the relationship of trust between doctor and patient, attorney-client privilege protected the relationship between attorneys and their clients, and pastoral secrecy protected the exchange between clergy and parishioners. Not to mention bank secrecy, which assigned the financial situation of bank customers to the realm of privacy and was enshrined in law in 1933 as bank customer secrecy and counterweight to the new federal supervision.

In the course of the 20th century, the protection of privacy in four areas of state action was controversial and was, at least temporarily, restricted. They range from state security, taxation and education to dealing with new technologies.

State security has existed since the creation of the federal state in 1848 to ensure state order. The targets were individuals and groups suspected of subversive activities and therefore tracked by means similar to those used by military intelligence. In the 19th and early 20th centuries, when the federal state was still relatively weak, state security led a marginal existence.

However, since the interwar period and especially during the Cold War, the activities of state security have expanded greatly. Foreign and leftist or radical leftist groups – almost a million people in total – were systematically and mostly unknowingly monitored. When the extent of espionage became known after the end of the Cold War and led to the “Fichen affair”, the federal government could no longer avoid a thorough reorganization of state security, subjecting it to stricter supervision and thus protecting the privacy of the public. to protect people. controlled reinforcement.

A second area where privacy protection has recently been limited is taxation. Compared to other European countries, Swiss tax law has traditionally been on the side of the taxpayer. In this way, income tax is not withheld from wages as a precautionary measure, as is customary in other tax systems, but is only calculated afterwards on the basis of a declaration.

Throughout the 20th century, tax evasion was a relatively common phenomenon in Switzerland, not least because of light penalties and the protection of banking secrecy. To encourage taxpayers to subsequently report evaded assets, the Confederacy issued several tax amnesties. This allowed taxpayers to self-declare for undeclared assets without being penalized for doing so. In 1945, after such an amnesty, invested capital increased by 28 percent, in 1969 by 25 percent – tax evasion had practically become a popular sport. This has only changed in recent decades, under international pressure from both the EU just like the OECD (Organization for Economic Cooperation and Development).

As part of the bilateral agreements with the EU and by taking over OECD-Standards, especially the automatic exchange of information, various loopholes – especially for foreign tax evaders – severely curtailed. As a result, the protection of bank secrecy was lost. Invoking privacy to evade the tax authorities has become more difficult in recent decades.

Education was a third area in which government agencies systematically violated privacy or allowed it to take place. In the 19th and 20th centuries, placing children, young people and adults in homes and institutions was often accompanied by violations of the integrity of the students and detainees.

Last but not least, there were public, humiliating punishment rituals, such as the widespread practice of having would-be bed-wetters present their dirty bedding in front of all other students and wash it. Sexual assault and sexual violence, which took place in many homes and institutions, ignored the privacy of the victims – with serious traumatic consequences for those affected. Here too, international organizations argued for more legal protection for victims and their physical and psychological integrity.

For example, Switzerland’s accession to the European Convention on Human Rights in 1974 led to the abolition of the laws on administrative supplies a few years later. The Convention on the Rights of the Child United Nations (1989) have led to children’s rights now receiving more attention in science and practice.

Finally, technological innovation has been a constant challenge to privacy protection. After the introduction of the telegraph and the telephone, the old postal secrecy also applied to the new means of communication. Since the 1960s, new surveillance technologies have repeatedly prompted political responses to protect privacy.

At the time, the debates revolved around miniaturized eavesdropping systems and mini cameras (“mini spies”), later on video surveillance in public spaces, today on data and privacy protection in social media. Digitization has given the protection of privacy a radical new dimension. Nowadays it is no longer just about the contradiction between citizen and state, but also about the power of international technology concerns.