OGer ZH: “Dis­clo­sure” of a secret alrea­dy at the pos­si­bi­li­ty of knowledge?

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.