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- Art. 3 FC
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
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- Art. 20 FC
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- Art. 29a FC
- Art. 30 FC
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- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 73 PRA
- Art. 73a PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. Relevance
- II. Protected legal interest
- III. Genesis and historical telos
- IV. Observing and Recording (para. 1)
- V. Subsequent acts (paras. 2 and 3)
- VI. Justifications
- VII. Complaint and sanction
- VIII. Concurrent offenses
- Bibliography
- Materials
I. Relevance
1 Article 179quater SCC was enacted at a time when it had no practical relevance: in the first 20 years of the penal provision's application (1969–1989), only eight convictions were recorded. A provision that makes mere photographing (and even observing) of others a criminal offense was a legislative novelty in its time and the Federal Council was not aware of any other country with such a provision. In recent decades, however, there has been a significant increase in reports and convictions, which may be due in no small part to technical developments and the ubiquity of smartphones. The phenomenon of image-based sexual abuse – i.e. the creation and/or distribution of intimate images without the consent of the person depicted – is also regularly treated under this criminal offense.
II. Protected legal interest
2 Art. 179quater SCC protects the private and secret spheres from abuse by optical recording devices. The legal interest is based on the protection of privacy under Art. 13 FC, which is particularly enshrined in the protection of personality under civil law. Behind the legal interest stands the “conviction that individuals can only develop into personalities if they are guaranteed a free space from the community and the state, as well as from other individuals”. The legislative authority also spoke of the right of each person to behave differently in a place where they believe they will not be seen by anyone than they would in public. These spaces of retreat, or the events that take place there, are to be protected in particular from being made available to third parties in the form of (moving) images. The protection is independent of the specific content of life; it can also involve completely mundane facts. Contrary to its marginal title (violation of the secret and private sphere by recording devices), the offense is an abstract endangerment offense.
III. Genesis and historical telos
3 Article 179quater SCC was introduced by the Federal Act on the Strengthening of the Protection of Personal Privacy under Criminal Law of December 20, 1968. The penal provision entered into force on May 1, 1969, together with five other articles (Art. 179bis to Art. 179septies SCC). The federal law is based on a postulate from July 1, 1966, which called for the protection of the intimate sphere from eavesdropping devices under criminal law. The legislative authority was particularly concerned with mini-spies, i.e. small devices for eavesdropping on other people's conversations. Art. 179quater SCC, which makes observation and imaging by means of image recording devices a criminal offense, was an exception. Nevertheless, Art. 179quater SCC must always be understood in the systematic context of the other provisions of the partial revision, in particular Art. 179bis SCC, to which – in the words of the legislators – it forms the “counterpart” and which is “in principle structured in the same way”. Art. 179bis SCC makes it a criminal offense to eavesdrop on and record third-party, non-public conversations. The legislative authority has always aimed to penalize only those acts that are as serious as eavesdropping with a listening device.
4 The legislative authority has concentrated primarily on the intrusions of the tabloid press, especially the risk of images being captured, copied and distributed by members of the press. The punishment of voyeuristic or curious persons was not considered. The fact that the offense was nevertheless extended to mere observation with recording devices (N. 12) served to avoid evidentiary difficulties.
5 In particular, the question of the protected areas of life or the object of the offense (N. 15 et seq.) led to numerous discussions in the councils. The current wording of the law (“a fact from the secret domain of another or a fact from the private domain of another that is not readily accessible to everyone”) is a compromise solution between the Council of States, which only wanted to protect the secret domain, and the National Council, which also wanted to cover the entire private domain. The additional wording that now restricts the private sphere (“not readily accessible to anyone”) is misleadingly formulated and can be interpreted in different ways. The historical telos of the clause can be deduced from the legislative materials (on the application of the interpretation, see notes 24 ff.):
“not [...] accessible fact”: According to the German legal text, it could be concluded that “not accessible” means that there is no (local) access to the fact, in particular that it cannot be entered. However, a precise interpretation of the term requires a comparison with the French and Italian versions of the law. These versions speak of a fact that cannot be perceived or observed: “un fait ne pouvant être perçu” and “un fatto, non osservabile”. A systematic look at Art. 179bis SCC, to which Art. 179quater SCC is the legislative counterpart for optical recording devices (N. 3), leads to the same result: Art. 179bis SCC requires a non-public, third-party conversation. A conversation is non-public if the participants conduct it in the justified expectation that it cannot be overheard by the general public without technical aids. This applies in principle regardless of where the conversation takes place. Taking into account the above definition, the wording of Art. 179quater SCC has the following historical telos: a fact is “not accessible” if the person concerned can have a reasonable expectation that it is not open to inspection by the general public. The legislative materials suggest that the legislators also assumed such an understanding of the wording. They regularly based their decisions on the visibility of the facts and the possibility for the person concerned to protect themselves from public view.
“not every person [...] accessible fact”: The fact must not be accessible to everyone, i.e. not to the general public. With regard to the equivalent of Art. 179bis SCC (N. 3), facts are generally accessible if they “can be perceived by a larger group of people not defined by personal relationships”.
“not [...] readily accessible fact”: with this formulation, the legislative authority means that the person committing the act must take “special precautions” to overcome the lack of visibility of the facts, whether it be through the “misuse of certain devices and instruments” or “by other sophisticated means” . If, on the other hand, a fact is already generally accessible, it is not enough for the recording to overcome only a moral hurdle.
6 The question of protected areas of life is regularly associated with the civil law theory of spheres. The theory originates from the law of personality and is based on the idea that legal personality can be divided into spheres that require different degrees of legal protection depending on their degree of sensitivity. The theory of spheres may have inspired the legislative body when it integrated the terms secret and private sphere into Article 179quater SCC in 1968. In view of the protected legal interest (N. 2), however, it was never the intention to use the sphere theory to define the protected areas. The legislators have repeatedly stated that they do not want to transfer to criminal law the civil law doctrine according to which there is also a private sphere in public, which is characterized by the privacy of the specific content of life. Consequently, they decided to restrict the private sphere conceptually by means of an additional formulation. The addition of “a fact not readily accessible to the general public” means that – in contrast to civil law – the focus is exclusively on the visibility of the fact (N. 5), regardless of the content of the expression in question (N. 2). This means that only an actual visual private sphere is protected, which is fundamentally independent of the location in which the life event takes place. The only thing that matters is that the person concerned has somehow protected the facts in question (the content of which is irrelevant) from the gaze of the general public. The distinction between the private and secret spheres has also been almost completely eliminated, since the criterion of the visibility of the facts (N. 5, N. 24 f.) and the criterion of the unknown nature of the facts (N. 19) usually overlap (for an exception, see N. 19).
IV. Observing and Recording (para. 1)
A. Objective elements
1. Persons liable
7 It is disputed whether only the actual intruder can be the person liable, i.e. someone who enters the protected area from outside (extraneus), or also someone who is in the protected area with the consent of the person concerned but without consent to carry out an act (intraneus). Corboz considers only the extraneous person to be punishable. Donatsch argues that persons who share the same private sphere do not enjoy any protection from each other. According to Trachsler, the intraneous person can also be considered a perpetrator in the secret area, provided that he or she acts secretly. Others consider both the extraneus and the intraneus to be possible perpetrators in all constellations. Case law has so far only marginally addressed the question of who can be a perpetrator. The Federal Supreme Court has ruled that in areas of properties that may be used equally by the residents without exclusive domestic authority, the parties do not enjoy protection of their private sphere among themselves. However, anyone who is a guest in the area of another person's home can also be held criminally liable as an intraneus, even if the recording is made openly. In a recent decision, the Zurich Higher Regional Court took the view that the intraneus can be a perpetrator if he secretly records other persons present in their own private home with domestic authority.
8 The question of whether Art. 179quater SCC only covers intruders (extranei) or also persons who are already within the protected area (intranei) as perpetrators can be determined by an interpretation of the norm. A historical-systematic interpretation of Art. 179quater SCC could initially suggest that the penal provision only covers intruders: The article is designed as an analogy to Art. 179bis SCC (N. 3), which punishes only extranei for eavesdropping and recording conversations. Intranei, on the other hand, are covered by Art. 179ter SCC, which carries a lower penalty. This distinction is based on the fact that the legislature considered the wrongdoing of intruders to be less serious than that of outsiders. It could be concluded from this that Art. 179quater SCC also only covers the more serious wrongdoing of intruders. However, a look at the protected legal interest and the historical purpose of the norm casts doubt on this interpretation: the aim of the legislators was to guarantee the protected persons an area for free development and to punish the dragging out of facts from this area into the public sphere (N. 2). However, this free development is not only endangered by intruders, but also by persons of trust (intranei) if they make recordings without consent. Those who constantly have to fear being recorded by persons with whom they share private information cannot develop freely. The protected legal interest is therefore endangered regardless of whether the person committing the offense is an intraneus or an extraneus. The wording of Art. 179quater SCC also supports this interpretation: unlike Art. 179bis SCC, it does not explicitly exclude Intranei, but allows both groups to be covered without further ado. The systematic distinction between SCC 179bis and SCC 179ter, which provides for a distinction between extranei and intranei in the case of the spoken word, cannot be readily applied to SCC 179quater, since this offence concerns image recording devices and not the listening in on conversations. In summary, the historical-teleological interpretation suggests that Art. 179quater SCC covers both extranei and intranei as perpetrators.
2. Offense
9 According to Art. 179quater para. 1 SCC, a person commits this offense if they observe (b.) or record (c.) an object (N. 15 ff.) with a recording device (a.).
a. Recording devices
10 The means used is an image recording device, which is defined by prevailing doctrine and case law as a device capable of capturing (moving) images for the purpose of transmission, storage or reproduction. This definition proves to be insufficient: it would also include deepfake software as an image recording device, for example. Deepfake programs capture images for transmission, storage or playback. However, they use existing images and/or videos to create a new work, but do not record themselves, and therefore cannot be understood as an image recording device. The definition must read as follows: An image recording device is a device that visually captures and records a real event in real time. The natural visual function of the human eye is replaced by the recording device. Recording devices include, in particular, cameras that may be part of another device, namely smartphone cameras, webcams, camera drones or smart glasses. Furthermore, photocopiers or scanners are recording devices. Finally, programs can also be recording devices. The Federal Supreme Court ruled that taking a screenshot of an e-mail constitutes an act under Art. 179quater, para. 1 SCC. Screenshots display and store what can be seen on the screen. The program thus creates a visualized snapshot of a real situation. Location devices or programs (location services, radio pills, tracking devices, thermal detectors, etc.), on the other hand, are not recording devices, since locating a person is not the reproduction of a real event, but a graphical representation of a person's whereabouts.
11 Purely observation devices (e.g. binoculars, telescopes, periscopes, night vision devices, torches, diving goggles, one-way mirrors, hand mirrors) are not recording devices and are therefore not considered to be instruments. This restriction is difficult to understand in view of the criminal act of observing with a recording device (N. 12 f.). Whether facts are spied out with an observation device or with a recording device is irrelevant for the endangering of the legal interest: the private sphere protected by Art. 179quater SCC (N. 2) is also compromised by the use of observation devices, since the person concerned can no longer behave as if they were unobserved. The legal interest is even more at risk if facts obtained from the protected area are evaluated or disseminated – behavior that, according to para. 2, is only punishable if a recording device is used, but not if an observation device is used (see N. 29 ff., N. 37).
b. Observing
12 The use of a recording device to observe the target of the offense (without making recordings) is already considered an offense. It is considered observing when the person actively perceives the target of the offense visually. In this case, the recording device acts as a means by which the person commits the offense observes the facts in question. For example, anyone who gains access to another person's webcam or smartphone camera by hacking (so-called camfecting) can intrude on that person's protected area by observing if the camera is merely activated but the events are not recorded.
13 The intraneus, who is in the protected area of the person concerned with their consent (see N. 7 f.), has already seen the facts and can only endanger the legal interest of the person concerned if he records the facts on an image carrier without consent. The act of observation is therefore to be reduced teleologically to actual intruders or extranei.
c. Recording
14 In the second case, the recording device is used to store the subject matter on an analog or digital image carrier. The recording must depict the object of assault, i.e. make it visually visible. A video on which only blackness can be seen and voices and sounds of pleasure can be heard is therefore not subject to Art. 179quater SCC. Recording is also punishable if an already existing image from the protected area is copied or displayed. It does not matter whether the recording is made secretly or openly. It is also possible that the recording device is operating automatically in the absence of the person committing the offense.
3. Object of the offense
15 The object of the offense of the provision is facts (a.) from the secret area of another (b.) or from the private area of another that is not readily accessible to everyone (c.). Which area is affected usually differs purely due to the dogmatic reasoning based on the restrictive additional formulation in the case of the private area (see N. 6).
16 The jurisprudence of the Federal Court goes too far in also recognizing the protection of the secret or private sphere of deceased persons until at least their burial.
a. Facts
17 The concept of facts is to be understood broadly: it includes all present or past events or circumstances related to the protected area of the person under surveillance that take on any visually perceptible form and are amenable to proof. The proviso 'evidentiary' implies that qualification as a fact does not depend on the veracity of the event or circumstance.
b. Secret
18 In order for a fact to be classified as secret, it must, according to prevailing doctrine and jurisprudence, be a secret in the criminal law sense, which is characterized by three cumulative criteria: it is a matter of a state of affairs that is relatively unknown, that the secret holder wants to keep secret and in which the secret holder has a justified interest in keeping secret. In view of the unambiguous wording in all language versions and the general structure of the law, the link with the concept of secrecy seems fundamentally reasonable. However, this only applies as long as it remains in line with the protected legal interest, which seeks to protect safe havens from interference regardless of their content (N. 2). Since the legitimate interest in confidentiality is a question of content, namely whether unlawful acts or circumstances are also to be granted protection as a secret, this criterion must not be taken into account when considering whether a person has knowledge of a secret belonging to another. Nor must the intimacy of the fact in question play a role. Therefore, only the unknown nature of the fact and the intention to keep it secret must be taken into account.
19 A relative unfamiliarity with the fact exists if its content is known only to a few precisely defined persons. This criterion means that the qualification of a fact as belonging to the secret area depends in most cases solely on its perceptibility: as soon as a fact – however intimate it may be – can be perceived by an indefinite number of persons for any reason, it becomes known and is no longer a secret in the criminal law sense. It follows that, in principle, the only thing that ultimately matters when it comes to secrets – and protected privacy – is whether the facts can be seen (see N. 5, N. 24 f.). Accordingly, the distinction between the two areas is often of no significance. However, there are situations in which the distinction between the protected secret area and the protected private area is relevant: a fact that the person concerned must assume to be accessible to the general public – that is, a larger group of people not defined by personal relationships – (N. 24 f.), but which in the specific case is only perceived by a small, precisely defined group of people, belongs only to the secret area, but not to the private area.
20 The will to secrecy means “the announcement of those efforts [...] that aim to withdraw a fact from the perception and knowledge of others”. It can be expressed explicitly or implied. Certain information carriers are “by their nature intended for a limited circle” – e.g. diaries or letters – and in certain places one expects to be able to pursue an activity in secret – e.g. in toilets or cloakrooms. The intention of secrecy is regularly expressed or reinforced when the information carriers or places are closed. A piece of clothing can also represent a desire for secrecy with regard to what is hidden underneath.
c. Private sphere not readily accessible to everyone
21 Because the concept of private domain is too broad for a criminal law provision under civil law, it was conceptually restricted in the legislative process by the additional wording “not readily accessible to everyone”, which has led to an actual erosion of the concept (N. 6). The interpretation of the additional wording is controversial:
22 The Federal Supreme Court interprets the additional wording “not readily accessible to the general public” very broadly: in line with prevailing doctrine, it generally limits the protected area to the so-called private sphere in the narrow sense, i.e. to all rooms and locations that are secured against outside viewing and where “the facts in dispute can in fact only be perceived by close relatives without further ado”. However, it does expand on this area: facts are not accessible without further ado if they can only be perceived by overcoming “physical [...] or legal-moral obstacles”. It defines the latter as “an imaginary, i.e. physically non-appearing, boundary [...] that, according to the generally accepted customs and practices in this country, is not crossed without the consent of those affected”. According to this understanding, anyone who enters or remains in a “private area protected in accordance with the offence of trespassing in Art. 186 SCC” in order to commit an offence is liable to prosecution. However, this local boundary of trespassing does not necessarily have to be physically crossed: Since overcoming a “legal and moral obstacle” is enough, people are protected even in the non-enclosed area in front of this space. The offender thus crosses the psychological boundary of a decent average person if they observe others in front of their house with a recording device or record them on a data storage medium – this applies even if the person can be seen from a place accessible to the general public.
23 The Federal Supreme Court's interpretation is open to criticism: the Federal Supreme Court extends the scope of application of Art. 179quater SCC by criteria that neither arise from the wording of the law nor correspond to the will of the legislature (N. 5). What happens in the unenclosed area in front of a house is generally visible and thus does not constitute an area protected by the legal interest. The two problematic criteria that lead to this interpretation need to be examined more closely:
The link to trespassing: The fact that the area protected by Art. 179quater para. 1 SCC basically coincides with that of Art. 186 SCC was adopted by the Federal Supreme Court from Noll, who was the only one to take this view at the time. A consideration of the German wording of Art. 179quater para. 1 SCC alone suggests a connection to trespassing: the term “accessible” implies that the area can be entered (N. 5). However, when considering the French and Italian language versions, the protected legal interest and the historical telos (N. 2, N. 5), it is striking that the link with SCC 186 is without any justification. The crime of trespass protects a person's domestic authority, i.e. the authority to decide who may enter one's own premises. The places where domiciliary rights apply are listed in Art. 186 SCC. Art. 179quater SCC, on the other hand, protects a completely different legal interest, namely the secrecy and privacy of the home against misuse by optical recording devices (N. 2). In contrast to Article 186 SCC, Article 179quater para. 1 SCC does not contain any list of protected areas. The scope of protection of Article 179quater SCC is not limited to persons who have domestic authority. Rather, in principle, all persons who are in a place protected from view are entitled to protection under the provision (N. 5, N. 24 f.). Finally, the legislators did not mention trespassing anywhere either, although the offense was already part of the SCC at the time. Therefore, no direct relationship between the two offenses can be established.
The term “legal and moral obstacle”: the Federal Court adopted this demarcation criterion from Riklin, but failed to recognize the fact that the author used this term in the context of general remarks on the theory of spheres (N. 6) and with reference to the literature on private law. In the narrower criminal private sphere, he himself took the view that there must be physical protection against prying eyes. This corresponds to the historical telos, according to which it is not sufficient for the recording to overcome only a moral hurdle if a fact is already generally visible (N. 5). Consequently, Riklin has also criticized the Federal Court's expansive interpretation. It now depends almost entirely on the moral conceptions of the judge to give the offense sufficiently clear contours. This is already evident in the practice of the Federal Supreme Court: for example, a journalist photographing a man on his doorstep was found to be recording in a protected private area, while an insurance investigator observing a woman vacuuming on her balcony was not found to be committing a crime. In the latter case, the court ruled that the images were “accessible without overcoming a physical or psychological barrier”. The obvious unequal treatment of the two rulings is taken even further ad absurdum by the reasoning that “no particularly personal scenes, but rather voluntarily performed everyday actions” were involved. In accordance with the protected legal interest (N. 2), the Federal Court otherwise correctly states: “It is not necessary for the observed or depicted behavior to be of a particularly personal nature [...]”.
24 The true meaning of the additional wording can be determined by a historical-systematic and at the same time teleological interpretation (see N. 5). Accordingly, a fact is deemed to be “not readily accessible to the general public” if the data subject can demonstrate a well-founded expectation that the fact in question is not accessible to the general public (N. 25 f.), without special efforts being required (N. 27). The term “general public” refers here to a larger group of people, not defined by personal relationships. Even when interpreted in line with the true meaning of the provision, there remains a gray area that must be filled by the moral judgment of the judge. However, this area is much smaller than it would be if the Federal Court's criteria were used to define it.
25 The reasonable expectation that a particular fact is not readily accessible to the general public arises when the person concerned has taken precautions to protect themselves from the gaze of a larger group of people not defined by personal relationships. Such a private space is usually created by a physical barrier between the fact in question and the general public, such as a hedge, a wall, window shutters, doors, curtains, drawers, a tent, an envelope or an item of clothing. By contrast, anyone who fails to protect themselves sufficiently from public view loses the legitimate expectation of not being seen by the general public. Facts that are generally accessible without restriction enjoy no protection. By contrast, what remains protected is what is only visible to a group of people defined by personal relationships, such as from the neighboring house. Accordingly, something that can be seen from the public street, even through a leaky hedge or a window, is “readily accessible to everyone”. If there is an effective privacy screen in principle, but it has a gap (e.g. a keyhole) or is temporarily removed against the will of the person concerned, the justified expectation of not being seen by the general public remains.
26 Factors that impede visibility such as great distance, darkness or water do not in themselves provide effective visual protection that gives the person concerned a reasonable expectation of not being readily seen by the general public. Although these obstacles can be overcome by means of vision-enhancing functions in recording devices, widely available observation devices with the same functions exist and their use is not punishable (N. 11). Consequently, the person concerned cannot legitimately assume that the facts are not visible to the general public. They must expect that other people will use observation devices to make the facts visible. Therefore, in principle, additional physical privacy protection (N. 25) is required, which the person concerned must overcome (N. 27). However, there are exceptions in which the person concerned can legitimately assume that they will not be seen even without physical visual protection. An exception arises when the legitimate expectation in a specific case is particularly strong due to the circumstances – for example, the specific location and/or time of day. In such cases, it must be assessed whether an average person in the same situation would have had to expect to be seen by the general public.
27 The formulation “not readily” refers, in view of the history of the criminal provision, to overcoming the lack of visibility (N. 5). If the person committing the act is an extraneous person (N. 7 f.), they overcome the physical visual protection between the act in question and the general public (N. 25) through technical and/or physical efforts. In this case, a recording device (N. 10) is either hidden in the area protected from view, activated by hacking in the area protected from view (camfecting), positioned above or below the screen, or used after the screen has been forcibly removed or removed. If the affected person, despite the lack of physical visual cover due to visual obstructions, can legitimately assume that they will not be seen by the general public, the extraneus overcomes these obstacles by using the visual-enhancing functions of recording devices (N. 26). If the person committing the offense is an intraneus (N. 7 f.), it must first be determined whether he or she is in the protected area of the person concerned with that person's consent, whereby this area is separated from the general public either by a physical screen or by qualified sight-obstructing factors. If this is the case, it is sufficient for the person to record the event (openly or secretly) (N. 14). Because the wrong in this case lies in the breach of trust (N. 8), no further technical and/or physical efforts are required.
B. Subjective element
28 The subjective element requires (conditional) intent. The person committing the offense must at least consider it possible and accept that the fact that he or she is observing or recording with a recording device is secret or not readily accessible to the general public.
V. Subsequent acts (paras. 2 and 3)
29 Paras. 2 and 3 penalize follow-up actions that lead to the facts (para. 2) or recordings (para. 3) from the protected areas being used or reaching further persons. This creates a greater danger for the protected legal interest (N. 2) than in para. 1.
A. Objective elements
1. Circle of offenders
30 The subsequent acts mentioned in paragraphs 2 and 3 are general offenses. They can therefore be committed both by the persons who have obtained the facts or image recordings through an act according to paragraph 1 and by any other person. This interpretation may correspond to the intention of the legislative authority, but it leads to excessive results, since anyone who exploits or distributes publicly disseminated facts or image recordings that are based on a criminal offense according to para. 1 can be held criminally liable without restriction. Some scholars are of the opinion that criminal liability ceases as soon as a fact has become common knowledge, “since there is then no longer any need for punishment”. Others would like to base it on praeter legem whether the person concerned still has an interest worthy of protection in keeping the facts secret at the moment of exploitation.
2. Offense
31 The follow-up actions include various acts that affect different objects (see N. 36 f.). The exploitation and disclosure to a third party (para. 2) relate to facts, while the storage and making available to a third party (para. 3) relate to recordings.
a. Exploitation of facts (para. 2)
32 As the French legal text (“tire profit”) makes clearer, “exploiting” means that the person uses the facts to his or her own advantage. The advantage does not have to be monetary. In order to fulfill the offense of exploiting according to para. 2, it would thus be sufficient if someone amuses themselves with the acquired fact or if it triggers some other positive feeling. Consequently, in the vast majority of cases of taking note of the fact, there would already be an evaluation. For the observing or recording person, the mere act of taking note usually coincides with the act of committing the offense according to para. 1 and constitutes a non-punishable post-facto offense. If the person committing the offense is different from the person who fulfilled para. 1, the term must be interpreted very restrictively. Simply being aware of the fact is not enough either.
b. Disclosure of facts to a third party (para. 2)
33 The second offense under Para. 2 is when the fact is passed on to a person who is neither the person nor the affected person, namely by telling them or sending them a text message. The offense is committed as soon as the third party has the opportunity to take note of the information passed on, for example from the moment they receive the letter, e-mail or message.
c. Storing recordings (para. 3)
34 Storing refers to image or video recordings that depict the protected areas. In this case, the recordings are on some physical object. The aim of this offense is to prevent the possibility of a person's secret or private area being endangered again. According to Legler, a certain duration of possession of the recordings is required for it to be considered storage.
d. Making recordings accessible to a third party (para. 3)
35 The recording is made accessible to a third party if it is shown, played or handed over or sent to that person in the original or as a copy.
3. Object
36 The object of the offense is facts (para. 2, for a definition see N. 17) or recordings (para. 3, for a definition see N. 10, N. 14) that can be traced back to a punishable act in accordance with para. 1. The offense must have been committed intentionally and without justification, but the person committing the offense does not have to have acted culpably. The recordings (para. 3) may be either digital or physical, and may also be copies.
37 The object of the offence has two loopholes in the law that are difficult to understand in view of the protected legal interest (N. 2): firstly, facts obtained by means of observation devices may be evaluated or disclosed to third parties without criminal consequences (N. 11). On the other hand, according to Art. 179quater, para. 2 or 3 SCC, anyone who distributes images or facts from the secret or private sphere of another person without their consent is not liable to prosecution, provided that these were obtained with their consent. The gaps in the law can be explained by the history of the norm, which shows that the legislators were primarily concerned with interference by the tabloid press (N. 4). Today, however, these restrictions appear outdated, as interference by the press has become less significant, while law enforcement agencies are increasingly confronted with perpetrators who act out of voyeuristic or other harmful intentions and distribute their recordings online. In particular, the distribution of such content on the internet has fundamentally changed the threat situation – a development that could not have been foreseen by the legislative authorities. In response to the newly emerged problem, one of the gaps has at least been partially closed: since the introduction of Art. 197a SCC on July 1, 2024, the distribution of sexual content that was originally recorded with the consent of the person concerned is punishable.
B. Mental element
38 The mental element requires (conditional) intent. The phrase 'know or assume' means that the standard of proof required for intent is lower than usual. It is sufficient that the offender was aware of grounds for suspicion that should have led them to believe that the facts or recordings were unlawful. It is difficult to say when such circumstances are present, especially in the area of (soft) pornography, where there are a large number of recordings whose secret creation is merely simulated. Furthermore, it must be taken into account that a person is often no longer able to recognize that a fact or recording has been obtained in a punishable manner if it has reached them via several intermediate carriers. In the follow-up actions according to para. 2, it is often not possible to recognize whether the facts were obtained illegally, since observation with observation devices is not a criminal offense, while observation with recording devices is punishable (N. 11 f.).
VI. Justifications
39 The penal provision can be justified with the usual justifications. Consent is explicitly mentioned in the elements constituting the offense. It can be left open whether this is consent excluding the elements constituting the offense or a justification, since it is irrelevant for practical application. In addition, the justification of protecting legitimate interests is of practical importance.
40 The differentiation between extranei and intranei (see N. 7 f.) is of decisive importance for the assessment of whether or not consent has been given. In the case of extranei, there is generally no consent from the person concerned from the outset. However, the latter usually does not even notice the act, since the behavior is hidden or secret. An act according to para. 1 is often only noticed after a subsequent act according to para. 2 has already taken place. This also applies to hidden recordings of intranei. In the case of overt recordings of intranei, there will be justification in the form of (implied) consent in a large number of cases. However, this does not apply in all cases: especially in areas of life that are subject to a great deal of shame, those affected often react passively or even with tonic immobility to unexpected intrusions. In this case, they are not able to give consent. In addition, it is important to note what the consent refers to: consent that another person may see a fact does not also include consent that they may be photographed. Similarly, consent that a fact may be photographed does not also include consent that it may be video recorded.
41 The justification of safeguarding legitimate interests can serve as justification in cases of Art. 179quater SCC, since recordings from protected areas are regularly suitable for enforcing legitimate interests, in particular if they reveal that someone is engaging in unlawful behavior. According to the case law of the Federal Supreme Court, the justification does not apply if a competent authority could have been contacted.
VII. Complaint and sanction
42 Art. 179quater SCC is a complaint-dependent offence because “the injured party does not always have an interest in having files or dossiers created about his personal matters, or in them becoming even better known through [the] proceedings” . All persons whose protected secret or private sphere is affected are entitled to file a complaint. If the protected area affects several persons, each individual is entitled to file a criminal complaint. According to the case law of the Federal Supreme Court, the relatives of a deceased person whose secret or private sphere has been invaded are also entitled to file a complaint.
43 The law provides for a penalty of a misdemeanor (Art. 10 para. 2 SCC) of up to three years' imprisonment or a fine. The judge may also order the confiscation or deletion of the illegal recordings (Art. 69 SCC). The recording device must also be confiscated or destroyed if the conditions of Art. 179sexies SCC are met. If a financial gain has been made as a result of the acts of exploitation under Art. 179quater para. 2 SCC, this must be confiscated in accordance with Art. 70 SCC.
VIII. Concurrent offenses
44 Anyone who observes and records facts from the protected area only fulfills Art. 179quater para. 1 SCC once. In the event of multiple subsequent acts in accordance with para. 2 or 3, the offense is fulfilled anew each time. Real concurrence also exists between the acts punishable under Art. 179quater para. 1 SCC and the subsequent offenses under para. 2 as well as the making available to third parties under para. 3. If the act of exploitation consists exclusively of taking note, it constitutes a co-punished subsequent offense in relation to para. 1 (see N. 32). Even the mere storage of data in accordance with para. 3 is, in relation to para. 1 and to the other elements of Art. 179quater SCC, a subsequent offense that is punishable.
45 If, when a picture is taken in accordance with Art. 179quater para. 1 SCC, a non-public conversation is also recorded in sound in accordance with Art. 179bis para. 1 SCC (listening to and recording third-party conversations) or Art. 179ter para. 1 SCC (unauthorized recording of conversations) are recorded, the two offenses are in genuine competition with each other, since SCC Art. 179bis et seq. protect a different part of the secret and private sphere than SCC Art. 179quater, namely the impartiality of oral statements and the confidentiality of the conversation. The subsequent acts under para. 2 and 3 of Art. 179bis f. SCC are also in genuine competition with the subsequent offenses under Art. 179quater para. 2 and 3 SCC, in accordance with the above rules (N. 44).
46 Anyone who records facts from the protected area without the consent of the person concerned and passes these recordings on to third parties may also be guilty of the offence under Art. 197a SCC (forwarding sexual content), provided the recordings are of a sexual nature. In this case, there are three offences, all of which are in genuine competition with each other: Art. 179quater para. 1 SCC (recording), Art. 179quater para. 3 (making available to a third party), Art. 197a SCC. In the case of the latter article, depending on the extent of distribution, either para. 1 (forwarding to a third party) or para. 2 (making public) is fulfilled.
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