Infor­ma­ti­on Secu­ri­ty Act (ISG) passed

The Infor­ma­ti­on Secu­ri­ty Act (ISG) was appro­ved in Decem­ber 2020 in the final vote after three years of Con­sul­ting adopted. The refe­ren­dum peri­od ends on April 10, 2021.

The final text is here available, the design and the mes­sa­ge here. The chan­ges sin­ce the draft are here comprehensible.

In the final pro­vi­si­ons, Art. 320 SCC (offi­ci­al sec­re­cy) was also amen­ded so that – par­al­lel to Art. 321 SCC, for exam­p­le – auxi­lia­ry per­sons are also inclu­ded as offenders:

Art. 320 Vio­la­ti­on of offi­ci­al secrecy

1. whoe­ver dis­c­lo­ses a secret that has been ent­ru­sted to him in his capa­ci­ty as a mem­ber of a public aut­ho­ri­ty or as a civil ser­vant, or that he has lear­ned in his offi­ci­al or offi­ci­al capa­ci­ty or as an auxi­lia­ry of an offi­ci­al or aut­ho­ri­ty is punis­ha­ble by a term of impri­son­ment of up to three years or a fine.

Vio­la­ti­on of offi­ci­al sec­re­cy shall be dee­med to have occur­red even after ter­mi­na­ti­on of the offi­ci­al or ser­vice rela­ti­on­ship. or the auxi­lia­ry acti­vi­ty punishable.

2. the offen­der shall not be lia­ble to pro­se­cu­ti­on if he has dis­c­lo­sed the secret with the writ­ten con­sent of his supe­ri­or authority.

In the dis­patch, the Fede­ral Coun­cil had stated,

This also eli­mi­na­tes the risk of cri­mi­nal lia­bi­li­ty for inter­nal employees if they dis­c­lo­se offi­ci­al secrets to exter­nal auxi­lia­ries wit­hout con­sent but on offi­ci­al busi­ness grounds.

The Fede­ral Coun­cil was appar­ent­ly of the opi­ni­on that a dis­clo­sure of offi­ci­al secrets to auxi­lia­ry per­sons wit­hout the con­sent of the supe­ri­or aut­ho­ri­ty is punis­ha­ble if neces­sa­ry, becau­se the punis­ha­bi­li­ty of the auxi­lia­ry per­son is a pre­re­qui­si­te for the per­mit­ted dis­clo­sure. This is at least doubtful (apart from the fact that the Fede­ral Coun­cil at that time still assu­med that a dis­clo­sure within the mea­ning of Art. 320 SCC alre­a­dy exi­sted in the case of “making acce­s­si­ble”, which the BGer rejec­ted in August 2018 has). Dis­clo­sure may also be per­mis­si­ble if the auxi­lia­ry is not sub­ject to Swiss cri­mi­nal law for legal or fac­tu­al rea­sons, e.g. becau­se it is loca­ted abroad; this applies not only to pri­va­te indi­vi­du­als but also to public bodies.




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