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.
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.