Law
Articles 60 to 79 of the Civil Code (CC) contain the provisions governing associations. In addition, there are various articles in the Federal Constitution (FC) that are relevant for associations. These are, in particular, the articles that regulate fundamental democratic rights such as freedom of association and freedom of expression.
Other laws are also relevant for associations, e.g. provisions of the labour law (in case an association acts as employer), copyright law (CL) and the Swiss Code of Obligations (CO).
Further information on important aspects of this sub-topic can be found at the bottom of this page.
The legal provisions relating to associations can be found in the Civil Code (CC). Articles 60 to 79 include all provisions that are related to associations only. Articles 52 to 59 contain general provisions regarding legal entities and also apply to associations.
Article 63 of the Civil Code (CC) stipulates that the provisions prescribed by law may not be modified by the articles of association. That means that these provisions are mandatory.
The Swiss Civil Code contains civil law, family law, inheritance law and property law. The legal provisions relating to associations can be found in Articles 60 to 79, those relating to foundations in Articles 80 to 89 of the Civil Code under civil law.
In the context of associations, “law” usually refers to the Civil Code (CC), which contains the Law of Association in Articles 60 to 79.
Mandatory provisions are provisions of the law, which may not be changed in the articles of association. They take precedence over provisions in the articles of association that might deviate from the law. In the law, they are emphasised by the term “by law”.
The freedom of assembly is a fundamental right which is guaranteed in Article 22 of the Federal Constitution (FC). It contains the right to organise meetings and to participate or not to participate in meetings.
There is a constitutionally guaranteed right to join together in associations. Article 23 of the Federal Constitution (FC) reads: “Freedom of association is guaranteed. Every person has the right to form, join or belong to an association and to participate in the activities of an association. No person may be compelled to join or to belong to an association.” This right also applies to foreigners in Switzerland. As a special form, the Federal Constitution mentions the right to form professional associations, which refers to the right of employees and employers to join together in order to protect their interests. Apart from the freedom of association, the Federal Constitution also guarantees the freedom of assembly and the freedom of expression and information (Federal Constitution, Articles 16 and 22).
Article 28 of the Federal Constitution (FC) guarantees the freedom of association and the right of employees to form organisations, to join them or to stay away.
Question
Three of our founding members have stepped down from the committee with the intention of establishing their own association. They claim that they can use the logo jointly developed at the time the association was founded for their new group. Do these founding members have the right, to simply "take" the name and logo of the existing association with them?
Answer
The association is an independent (legal) entity. This means that it can perform legal actions and own property, material assets, etc. Objects and funds do not belong to individuals, but rather the association as such. Founding members do not have any special rights in this regard.
The logo therefore unequivocally continues to belong to the original association. This is, of course, as long as nothing has been agreed to the contrary.
Copyright arises automatically when a work is created, for example, when something is photographed, painted, written or composed. Protection does not require registration, nor is the affixing of the © symbol a prerequisite for protection. The author is the (natural) person who created the work (principle of creativity). A “work” as defined by the Swiss Federal Act on Copyright and Related Rights (protected under Article 2 of the Copyright Act, CopA) must meet the following criteria: It must 1. be an intellectual creation; 2. have individual character, and 3. belong to the field of literature, art or computer programs. The website of an association can also be protected by copyright (design, code, texts, photos). The revision of the Copyright Act made an important addition to Article 2(3bis): photographic depictions are considered works, even if they do not have individual character. This means that since 1 April 2020, all images are protected, even those that do not meet the requirements of a work under Article 2(1) CopA, i.e. also images by amateur photographers!
Question
We published images on our website that we found via Google. We have now received a warning from lawyers in Germany. Do we have to take this seriously?
Answer
On Swiss websites, suspected copyright breaches often occur through the unauthorised use of images. For this reason, many warnings are issued owing to the use of such images on Swiss websites, with this also being especially true from Germany, where an actual warning industry has become established. Typical traps that lead to warnings include "image theft" via Google or Wikipedia, the violation of license conditions for "free" or "license-free" images and the online publication of presentations or association magazines with images.
In the case of the images for which the warnings are issued, it is often questionable whether they are protected by copyright in Switzerland. The absence of protection in Switzerland does not mean, however, that it is not possible to receive warnings from Germany. In cases of doubt, a court must rule on the matter. In each individual case, it is therefore essential to carefully check how to respond correctly to such a warning.
Should you respond incorrectly, you may damage your own legal position. In (almost) every case, the wrong response is to simply dispose of such warnings as waste paper. Nor is it usually possible to settle such warnings by issuing an apology to the opposing lawyer. It also doesn't help to insult the opposing lawyer.
Recommendations from the lawyer Martin Steiger on the correct way to proceed upon receiving warnings
A model release is the written legal permission, usually signed by the person depicted in a photograph, which gives the photographer or the association permission to publish the image.
Question
Our association now has a Facebook account. To make the page attractive, we want to make photos of our activities available within the network. In some cases, easily recognisable individuals are shown. Does their permission need to be requested? After all, the images on our Facebook page can only be viewed by "friends".
Answer
Photos are classified as sensitive personal data and, generally speaking, may only be used with the consent of the individuals shown in them. Even if you are able to restrict access on Facebook, it is nevertheless an open medium whose appeal lies in precisely the fact that more and more people gain more and more insights. Furthermore, the association is interested in having as many "friends" as possible.
I therefore advise against publishing any photos without first obtaining the consent of the affected individuals. Sending an enquiry in this regard to association members also provides the opportunity to get in contact with them.
As a rule, images should be used in which people are only recognisable to a limited extent or as part of a crowd. Furthermore, photos should not be noted with the names of the people who appear in them and no images should be used that encroach on the privacy of the people shown in them or that allow for conclusions to be drawn about their religious or political views, show the consumption of drugs or criminal activities, document the receipt of social welfare, etc.
It goes without saying that images should be deleted upon the request of the people they show.
It is recommended that the rights of use of the association to copyrighted material and the right to the image of the members of the association be specified in separate regulations. The drafting of such regulations is usually the responsibility of the Board, provided this is regulated accordingly in the Articles of Association. A regulation of the persons depicted governs the use of images in which members of the association are depicted and/or the use of such material by the association.
It is recommended that the rights of use of the association to copyrighted material and the right to the image of the members of the association be specified in separate regulations. The drafting of such regulations is usually the responsibility of the Board, provided this is regulated accordingly in the Articles of Association. The regulations for photographers govern the rights of use by the association to copyright material created by members of the association, such as photographs, clips, illustrations, etc.
Every person has a right to their own image, so they can decide whether, where, when it may be published in print or online. The person depicted must therefore give their consent, for example, by means of a so-called model release. Supplementary regulations concerning the content of images with regard to the right to one’s own image of members and/or the use of such material by the association are, therefore, also important.
SUISA is the cooperative society for authors of music in Switzerland. For musical performances (concerts, evening entertainment, discotheques), a permission for the performance of musical works must be obtained from SUISA and the corresponding royalties be paid.
In addition to the general part and the various types of contracts, the Swiss Code of Obligations (CO) contains provisions for those legal entities that pursue an economic purpose.