Facts
X. (born in 1970) concluded a licensing agreement with the American group "A." in the spring of 1996, allowing him to distribute the American version of a data medium (CD-ROM) titled "B." in Europe. He had 3,000 of these media pressed without making any modifications, then offered them for sale on the Internet in Switzerland and abroad. The CD-ROM contained in its table of contents a section titled "VIRUS" which, although it did not contain a functional virus program, contained instructions and information for the creation of programs that infect, destroy or render data unusable. The District Court of Zurich found X. guilty of data destruction committed in a professional manner within the meaning of Art. 144bis para. 2 no. 1 and 2 SCC and sentenced him to a fine of 300 francs. The High Court of the Canton of Zurich confirmed the finding of guilt, imposed a custodial sentence of two months suspended and imposed a fine of 5,000 francs on X. X. appealed against this judgment. The Court of Cassation of the Canton of Zurich annulled the judgment of the High Court, which then obtained an expert report from Professor U. Maurer of the EPFL and confirmed its initial judgment.Considerations
According to the DFC, the objective element of the offence under Art. 144bis para. 2 no. 1 SCC is fulfilled even if the information for the manufacture of computer programs intended to damage data has not been developed by the perpetrator himself. The wording of the law does not make any distinction in this respect. This extensive interpretation is in line with the objective of the norm, which aims to prevent the dissemination of technical knowledge enabling the creation of…