“Human Rights Violation”
In December 2014, the Swiss Parliament – at the initiative of the Liberals at the time – tightened the penal provisions of Article 47 before it came into force in July 2015. Until then, bank-client confidentiality only bound people who were directly involved in the banking business, i.e. essentially bank employees and auditors. Since then, however, everyone who makes secret bank details public has had to face the consequences. “In the Swiss Banking Act, the passing on of certain bank data is subject to high penalties or even imprisonment. This is regardless of whether such data is also in the public interest. My opinion is that this violates human rights,” said UN Special Rapporteur Khan in the interview to “Spiegel” and “Tages-Anzeiger”. Convicted criminals and politically exposed persons also have a right to privacy, but not when there are good reasons to believe that they are involved in financial crimes. I think the Swiss government is in a difficult position to explain why disclosure of such information should be punishable by up to three years in prison. Especially when journalists and whistleblowers point out real problems in a bank.”
Things are slowly starting to move in Switzerland itself. This week the Parliamentary Commission for Economy and Taxes to deal with the banking law and freedom of the press.
The legal situation in Austria
Austria is in the recently published global ranking of press freedom Reporters Without Borders now well behind Switzerland (compared to 2021, Austria fell from 17th to 31st place, Switzerland fell from 10th to 14th). However, this special threat situation does not exist here. The local banking secrecy is still only a professional secret, so it essentially obliges bankers, violators face fines or imprisonment of up to one year.
In general, journalists in Austria are allowed to use information – provided there is a legitimate public interest – even if it was passed on in violation of professional secrecy. This was determined by the Supreme Court in 2018 in a procedure (directly relevant to profil). According to the Supreme Court, “no ‘ban on the use’ of illegally obtained information can be derived from the legal system, according to which the media are not allowed to publish information that they have received from third parties in violation of confidentiality obligations”. That would be incompatible with the role of the media as a ‘public watchdog’ postulated by the European Court of Human Rights, according to the OGH at the time.
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