Swiss banking secrecy law clashes with freedom of speech

Credit Suisse has been in the firing line of media reports on wealthy clients, but whistleblowers and journalists could also face sanctions. Ennio Leanza/Keystone

Journalists publishing leaked data of Credit Suisse bank clients could face up to five years in prison under Swiss law. Fear of criminal sanctions prevented Swiss media from participating in the “Suisse Secrets” investigation and raised questions over freedom of speech in Switzerland.

“The fact that bank data is being leaked in foreign media today, while there is a ban on research in Switzerland, is an absurdity that must be abolished,” Arthur Rutishauser, editor-in-chief of Switzerland’s largest media group, Zurich-based Tamedia, wrote in an op-edExternal link.

Violating the confidentiality of clients has been a codified crime for bankers in Switzerland since 1934. A spate of data leaks to Germany and other countries saw banking laws extended in 2015 to make it an offence for anyone to make use of such stolen information, including journalists.

This placed media like the Tages Anzeiger in an awkward situation when a whistleblower offered details of Credit Suisse clients, including dictators and criminals. While media from a variety of other countries sifted through the evidence, Swiss journalists decided that the potential cost was prohibitively high.

“Journalists can be prosecuted if they publish data about a person that they received in violation of banking secrecy,” the State Secretariat for International Finance told the newspaperExternal link.

Public interest versus banking secrecy

Irene Khan, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, said she would bring the matter up with the Swiss government. “Prosecuting journalists for publishing bank details that are of public interest would violate international human rights law,” she said. 

Several bank whistleblowers have already been jailed for leaking data in Switzerland. The classic media defence of “public interest” has never been tested in Swiss courts and the Tages Anzeiger did not want to be the first such potential case.

The British Guardian newspaper, which did analyse the data, was left bemusedExternal link by a potential “brazen attack on free expression, not least in a country such as Switzerland, which is among the top ten countries in the World Press Freedom Index.”

The Paris-based Reporters Without Borders organisation condemned the Swiss banking law as an “intolerable threat to the freedom of information” and called on the Swiss authorities to refrain from prosecuting journalists who did receive the bank data.

“Provided the information revealed by the leak of bank data is true and contributes to a debate of general interest, its publication by the media should be protected by the freedom of the press, guaranteed both by the Swiss Federal Constitution and by the European Convention on Human Rights,” stated Denis Masmejan, Secretary General of Reporters Without Borders Switzerland.

The left leaning Social Democratic and Green political parties have both called for the law to be amended to prevent it from muzzling the press.

Credit Suisse issued a statement saying the bank “will continue to analyse the matters and take additional steps if necessary” but refused to confirm whether this could include criminal complaints against the person(s) who leaked the data or anyone who received it.

Tracking tax evasion

The extension of the banking secrecy law in 2015 was intended to punish third parties who profited from stolen bank information. This followed a series of leaks that were sold to German states to help them track down tax cheats.

A former information technology employee at the HSBC private bank in Geneva, Hervè Falciani, also passed on confidential data to the French authorities. He was sentenced to a five year prison term but did not attend the trial and remains a fugitive.

Since July 2015, anyone actively involved in leaking client data can be punished with up to three years in jail, rising to five years if they profit from this venture.

Although it was acknowledged during parliamentary debates leading up to the updated Swiss banking act that journalists might be implicated as criminals, the law still came into force. No journalists have been prosecuted on these grounds to date.

In 2017, Switzerland began automatically exchanging data of Swiss banking clients with a range of other countries for tax purposes. But strict banking secrecy still applies within the Alpine nation despite efforts to tighten the criminal code for domestic tax offenders.