Facts
The case concerns a dispute between a married couple who were in divorce proceedings. The husband (respondent) unlawfully accessed his wife's (complainant) password-protected e-mail account by correctly answering the "secret question" known to him, thereby obtaining a new password. He then printed out two e-mails, which he subsequently deposited in the recycling bin outside his office, where they were found by the complainant.
The Public Prosecutor's Office of Winterthur/Unterland discontinued the proceedings due to the complainant's lack of standing to file a complaint. The High Court of the Canton of Zurich confirmed this decision, as it was of the view that only the operator of the data processing system (here, company [B.] ) had standing to file a complaint, and not the complainant as the holder of the e-mail account.
Considerations
The Federal Supreme Court overturned the decision of the High Court and remanded the case for a new assessment by the lower court. It stated that the offence of unauthorized access to a data processing system under Art. 143bis of the Swiss Criminal Code protects the operator's claim that its system and the data processing carried out therein can be operated without interference from unauthorized persons. Thus, the freedom of the authorized person to decide who is granted access to a secured data processing system and the data stored therein is protected.
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