In the present case, the Federal Criminal Court had Judgment of August 23, 2013 to assess the accusation that several e‑mails had betrayed manufacturing or business secrets. The act itself was acknowledged; the only dispute was whether a manufacturing or trade secret within the meaning of StGB 273 had been violated.
The BStGer summarizes the facts of StGB 273 as follows:
[…] According to the case law on Art. 273 StGB, the concept of a manufacturing or trade secret is to be interpreted broadly, since, in accordance with the meaning and purpose of the provision all facts of economic life The information covered is that in Switzerland’s view there is a legitimate interest in keeping secret and that it should therefore be protected from foreign countries. For Art. 273 StGB it is sufficient if the fact is not known to the beneficiaryA relative lack of knowledge is not a prerequisite (BGE 104 IV 175, E. 1b). The concept of secrecy thus differs from the identical expression in Art. 162 StGB (and Art. 13 lit. f UWG) (cf. on the whole BGE 98 IV 210 , E. 1a; Trechsel/ Vest, loc. cit., Art. 273 N. 3, each with references).
2.2.2 As with the concept of secrecy under Art. 162 SCC, in the case of economic intelligence the owner of the secret must also have an interest in secrecy as well as a Intention to maintain secrecy show. The individual will of the owner of the secret is not, however, worthy of protection per se. What is protected is a Legitimate interest (objectively worthy of protection) in secrecy by the owner of the secret. The interest must economic nature (cf. BGE 101 IV 312; Gerber, in: ZStrR 1977, vol. 93, p. 279 and 285, Trechsel/Vest, loc. cit., Art. 273 N. 7 f.). The lack of a confidentiality interest of the owner of the secret that is worthy of protection cannot be compensated for by any interests of the national economy, which are not infrequently of a contradictory nature, depending on the branch of industry and position in the economy (OG Luzern judgment of 26 April 1988, E. 4, in: LVGE 1988 I no. 49). Furthermore, the secret must have a relationship with Switzerland ( Trechsel/Vest, loc. cit., Art. 273 N. 9, with reference). Only a foreign official body, a foreign organization or a private company or its agents can be considered as the beneficiary.
2.2.3 The offense under Art. 273 para. 2 SCC consists of “making accessible”, i.e., in the broadest sense, providing foreign countries or their agents with the possibility of gaining unauthorized insight into Swiss economic relations, whereby it is not necessary that the insight be successful ( Trechsel/Vest, loc. cit., Art. 273 n. 11; Husmann, Basler Kommentar Strafrecht II, loc. cit., Art. 273 n. 59, each with references).
2.2.4 In subjective terms, intent is required. It is sufficient if the perpetrator knowingly reveals a secret fact to a third party. Whether he knew about the state protection of such secrets and thus about the violation not only of private but also of state interests in case of their disclosure is irrelevant (BGE 104 IV 182).
The perpetrator of a betrayal can be any person who has legally or contractually bound to secrecy is subject to the secrecy owner. This was the case in the present case on the basis of an employment contract. However, the BStGer denied a violation of Art. 273 StGB because there was no interest in secrecy:
e) However, a legitimate interest (objectively worthy of protection) in secrecy on the part of the owner of the secret cannot be assumed. The information is so superficial and vague that it is not capable of establishing an objectifiable interest in protection (see supra, E. 2.2.2). The statement that the private plaintiff “years ago” had “not managed” tests with long glass feed, Does not lead to an economic risk. Moreover, the defendant A. makes his own hypotheses in the e‑mail, he thus only announces his personal considerations, which, among other things, is evident from the sentences such as “C. AG will probably…”, “they will possibly…” and “if that were the case …”. Therefore, these are not secrets of the private plaintiff, but conjectures of the defendant. Thus, the objective requirements of Art. 273 para. 2 SCC are not fulfilled in this respect, and the defendant is to be acquitted.