In a dispute between a client and his former attorney, the Zurich Superior Court had to rule on an alleged violation of professional secrecy. In its Resolution UE190028‑O of 27 December 2019. it states the following – without having to deal with the question in more detail – regarding “disclosure” within the meaning of Art. 321 para. 1 SCC:
The element of disclosure is fulfilled if the perpetrator brings the confidential fact to the attention of unauthorized third parties. or enables them to take note.
In doing so, the Supreme Court contradicts the recent case law of the Federal Supreme Court and, following it, the probably prevailing doctrine. In the judgment 6B_1403/2017 the Federal Supreme Court expressly departed from the view that disclosure is already complete with the possibility of knowledge. Rather, actual knowledge by the third party is required:
1.2.2 Pursuant to Art. 162 SCC, anyone who discloses a manufacturing or trade secret which he should keep as a result of a legal or contractual obligation is liable to prosecution. The The offence is the same as the offences of violation of official secrecy (Art. 320 StGB) or professional secrecy (Art. 321 StGB).. In the BGE 142 IV 65 E. 5.1 mentioned by the previous instance, the Federal Supreme Court considered that a secret is disclosed if it is brought to the attention of a third party who is not authorized to do so or if the third party is enabled to take note of it. This is a mere description of the criminal conduct, from which – contrary to the opinion of the lower court – nothing can be deduced as to the time of completion of the act. Rather, the doctrine is to be followed in this question, according to which the act is completed as soon as an outsider obtains knowledge of the secret in question thanks to the conduct of the perpetrator.. Criminal Try would be assumed, in particular, if the perpetrator provided information for a third party made accessible but the latter has not yet taken note of the secret […].
Accordingly, breaches of secrecy are now understood as successful offenses. However, it cannot be inferred from its decision that the Supreme Court deliberately intended to deviate from this view. In the end, the question was also not relevant for the decision, because a sufficient declaration of release by the client was available.
It is also interesting to note in passing a comment by the higher court on the express consent:
Furthermore, the wording of the declaration of release does not imply any restriction with regard to the content or scope or nature of the confidential information or the information to be disclosed. In this respect – contrary to the view expressed by the complainant […] – there is an express consent of the data subject to the disclosure of
particularly sensitive personal data within the meaning of Art. Art. 4 para. 5 FADP.
Accordingly, the Upper Tribunal does not appear to require that the content of the declaration expressly refers to personal data requiring special protection in order for it to be explicit within the meaning of Art. 4 (5) FADP, but rather allows it to suffice that the Declaration of release in the sense of an operation expressly and not by implication.
Again, however, the high court did not address the issue of expressiveness in any detail.