Unauthorized Access to an E-Mail Account - No Criminal Liability under the Telecommunications Act or the Criminal Code

Facts

The complainant [X.] filed a criminal complaint against the school [A. GmbH] , as it allegedly accessed his private e-mail account "[A.] @gmail.com" without authorization and used e-mails from it in criminal proceedings against him. The public prosecutor's office did not take up the case, which [X.] unsuccessfully challenged before the High Court of the Canton of Bern. He then filed a criminal appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court dismissed the appeal. It stated that the contested access to the e-mail account did not fall under either Article 50 of the Telecommunications Act or the criminal offenses of the Criminal Code:

Article 50 Telecommunications Act: This provision only protects information that falls into the wrong hands during its telecommunications transmission. However, the access to the e-mail account took place after the data transmission was completed, so Article 50 of the Telecommunications Act is not applicable.

Article 143bis of the Criminal Code (unauthorized access to a data processing system): This offense requires that the data processing system was specially secured against access. Since the complainant had voluntarily provided the school [A. GmbH] with the login credentials for the e-mail account, it was not specially protected.

Article 179 of the Criminal Code (violation of…