Art. 50 TCA prohibits the unauthorized use of information:
Anyone who uses a telecommunications system to receive non-public information that is not intended for him or her and uses it without authorization or discloses it to third parties is liable to a custodial sentence not exceeding one year or a monetary penalty.
Art. 179novies StGB prohibits the unauthorized acquisition of personal data:
Anyone who obtains particularly sensitive personal data that is not accessible to the general public without authorization is liable on request to a custodial sentence not exceeding three years or a monetary penalty.
Art. 179novies StGB was amended by the DPA; previously this provision read as follows:
Anyone who, without authorization, obtains particularly sensitive personal data or personality profiles that are not freely accessible from a data collection is liable on request to a custodial sentence not exceeding three years or a monetary penalty.
Against this background, the Basel-Landschaft public prosecutor had to decide whether the Operator of a certain network as private plaintiff was to be admitted in the proceedings against a third party (we will not go into further details for reasons of confidentiality). According to an order issued by the public prosecutor’s office in March 2025, this is not the case:
- Anyone who is the injured party, i.e. who has been directly injured by the offense, i.e. who is the bearer of the protected legal interest, can constitute themselves as a private claimant.
- In the case of Art. 50 TCA, it follows from the materials (dating back to 1921) that it is a matter of telecommunications secrecy. Accordingly, only the owner of the secret, i.e. the “customers of telecommunications traffic”, are protected, but not the network operator.
- In the case of Art. 179novies StGB, the “mere owner of a data collection” is not or at least no longer the aggrieved party, especially since the term “data collection” no longer exists. In addition, the network operator hardly ever maintains a data collection.