Swiss life insurance companies long kept a database containing health data. But data subjects were not informed about it – which is a violation of the right to privacy. Although Swiss television reported on this illegal data collection in 1984, it took a while for insurance companies to change their practices. A scene from the consumer TV programme ‘Kassensturz’ on the insurers’ central database, 17.9.1984. SRF

Privacy – a contested fundamental right

The Federal Constitution guarantees the right to privacy. Yet, time and again, this fundamental right has been restricted – in state security, the education system and taxation.

Martin Lengwiler

Prof. Martin Lengwiler is professor of modern history at the University of Basel. His research interests include the history of the welfare state and the economic history of the insurance industry.

Under Article 13 of the current Federal Constitution, the right to privacy is a fundamental right that everyone living in Switzerland enjoys. It includes the right to privacy in private and family life and in the home, the right to be protected against the misuse of personal data, and the right to privacy in relation to mail and telecommunications. Privacy as a fundamental right is a new phenomenon, only being added to the Federal Constitution in 1999. But as a widely-recognised guiding principle, the idea is much older, and harks back to the 19th century. At the time, the right to privacy was closely linked to the idea of the republican citizen. Privacy protected the free citizen from the intervention of a powerful (read: authoritarian, absolutist) state. For example, the 1889 German-language encyclopaedia Meyers Konversationslexikon defined the term ‘private’ as ‘what is contrary to public life’ and the private sector as distinct from the ‘state economy’ or ‘public sector’. Civil liberties, which emerged in response to the growing power of absolutist states, were historically closely linked to the right to privacy. The history of the modern federal state and the expansion of its powers have consistently clashed with the civil right to privacy. A good example is the taxation system in the Helvetic Republic, in other words before the establishment of the federal state in 1848. The attempt to set up a modern tax and duty system failed in the early 19th century, not least due to a radical notion of civil tax secrecy. In Basel, officials were only allowed to set up a box when collecting taxes, but not to check the amount that taxpayers actually deposited in it. The taxes were handed in in a sealed envelope, without being inspected by the public official. Those who inserted the correct amount of tax were apparently mocked by their fellow citizens. Many counterfeited coins would regularly end up in the box. It is therefore no coincidence that the 1848 Federal Constitution only had to settle a conflict between the state and privacy in one area – the postal system. The Constitution bolstered the position of private citizens and guaranteed the ‘inviolability of postal secrecy’.

Breaches of postal secrecy mainly occurred during the two world wars. A soldier sent this letter to Switzerland. But before it arrived, it was opened and read by the Austro-Hungarian War Surveillance Office. In short, it was censored. Letter from Laibach to Bern with censor stamp, 13.8.1915. Museum of Communication Bern

The great importance that civil society has attached to the protection of privacy since the 19th century is reflected for example in various professional secrecy obligations that are legally enshrined, particularly for middle class professions. Medical confidentiality protected the relationship of trust between doctor and patient, legal professional privilege the relationship between lawyers and their clients, and pastoral secrecy the exchanges between members of the clergy and parishioners. And not forgetting banking confidentiality, which assigned the financial circumstances of bank clients to the realm of privacy and was enshrined in law in 1933 as bank client confidentiality and as a counterbalance to the new federal supervision. Over the course of the 20th century, the right to privacy has been contested and restricted – at least temporarily – in four areas of state action, ranging from state security to taxation and from education to new technologies. The national security agency had existed since the establishment of the federal state in 1848 to secure law and order. It targeted individuals and groups who were accused of subversive acts and who therefore had to be monitored using similar methods to those used by the military intelligence service. In the 19th and early 20th centuries, when the federal state was still relatively weak in terms of federalism, state security was a marginal activity. However, from the inter-war years, and particularly during the Cold War, state security activities were significantly stepped up. Foreign and left-wing or radical left-wing groups – almost a million people in total – were systematically placed under surveillance, mostly without their knowledge. When the scale of the spying activity was revealed after the end of the Cold War, culminating in the secret files scandal, the federal government could no longer avoid overhauling state security, subjecting it to greater supervision and thereby reinforcing the privacy of those who were placed under surveillance.

The small Nagra SN tape recorder manufactured by the Swiss company Kudelski with exceptional sound quality is used by the Swiss police. Until the 1970s it was also supplied to the CIA for covert recordings. Kudelski, espionage recorder, Nagra SN recorder, 1973. Swiss National Museum

Another area in which the right to privacy has been restricted in recent years is taxation. By contrast with other European countries, Swiss tax law has traditionally been on the side of taxpayers. This means that income tax is not deducted from the salary upfront, as is customary in other tax systems, but is only calculated afterwards on the basis of a tax return. Throughout the 20th century, tax evasion was a relatively widespread problem in Switzerland, not least due to small penalties and the protection afforded by banking confidentiality. To encourage taxpayers to declare evaded taxes retroactively, the federal government granted tax amnesties on a number of occasions. This allowed taxpayers to voluntarily disclose undeclared assets without facing penalties. In 1945, after one such amnesty, reported taxable assets increased by 28%, and in 1969 by 25%. Tax evasion had practically become a national sport. This has only changed in recent decades following pressure both from the EU and from the OECD. As part of the bilateral agreements with the EU and the adoption of OECD standards – particularly the automatic exchange of information – Switzerland has significantly reduced various loopholes, particularly for foreign tax exiles. In effect, this means that the protection afforded by banking confidentiality has ceased to apply. Claiming the right to privacy as a way of avoiding the tax man has got much more difficult in recent decades.

“It’s clear that many people are cheating – despite the obligation to make a truthful declaration.” TV report on the motion by National Councillor Hans Schmid calling for a duty of disclosure for banks in cases of suspected tax evasion, 21.3.1975 (in German). SRF

The education and welfare system is a third area in which state authorities have systematically violated the right to privacy, or allowed such violations to happen. Administrative detention, where children, adolescents and adults were removed from their families and placed in homes and institutions in the 19th and 20th centuries, frequently involved breaches of integrity towards pupils and inmates. This included public, humiliating punishment rituals, such as the widespread practice of making ‘bed-wetters’ present and wash their dirty laundry in front of all the other pupils. And in terms of sexual assaults and sexual violence, which occurred in many homes and institutions, victims’ privacy was violated – with serious traumatic consequences for those affected. Here, too, calls for greater legal protection of victims and their physical and psychological integrity came from international organisations. Switzerland’s accession to the European Convention on Human Rights in 1974, for example, led to the abolition of laws on administrative detention a few years later. And the UN Convention on the Rights of the Child (1989) means that there is now greater respect for children’s rights in theory and in practice.

Those whose behaviour didn’t conform to socially accepted norms would quickly become victims of official disciplinary measures around 1900. Young people were looked after in institutions, like this ‘asylum for fallen and repentant girls’. The focus was on educating inmates for work, with scant regard for their privacy. Wash day at the Magdalene asylum, Zurich, circa 1900. Stiftung Hirslanden Sozialpädagogisches Zentrum für junge Frauen, Zurich

Finally, technical innovations pose an ongoing challenge to the right to privacy. The old postal secrecy also applied to new means of communications after the introduction of the telegraph and telephone. Since the 1960s, new surveillance technologies have repeatedly led to policy responses that have sought to guarantee the right to privacy. At the time, debates revolved around miniature bugging systems and mini cameras (‘mini spies’), later around CCTV, and nowadays around data protection and privacy on social media. Digitalisation has taken the right to privacy to a completely new level. Nowadays it’s no longer about the dichotomy between citizen and state but also the power of international technology firms.

Every person has the right to be protected against the misuse of their personal data.

Federal Constitution of 1999, Article 13, paragraph 2

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