Conviction of the complainant for unauthorized recording of telephone conversations

Facts

In January 1972, the complainant Gutweniger conducted several telephone conversations with editor Dr. Valsangiacomo from the "Tagesanzeiger" newspaper about a trial report published in the newspaper. Valsangiacomo subsequently filed a criminal complaint against Gutweniger for unauthorized recording of these conversations on tape.

The District Court of Zurich initially acquitted Gutweniger. However, on appeal by the public prosecutor's office, the High Court of the Canton of Zurich found him guilty on March 23, 1973 of continued unauthorized recording of conversations within the meaning of Art. 179ter para. 1 of the Swiss Criminal Code and imposed a fine of 200 Swiss francs.

Gutweniger then filed a nullity appeal with the Federal Supreme Court and requested acquittal from guilt and punishment.

Considerations

The Federal Supreme Court states that the decisive factor for the exclusion of criminal liability under Art. 179quinquies para. 2 of the Swiss Criminal Code is whether the listening device was approved by the PTT (Swiss Postal, Telephone and Telegraph Services). Since the High Court has conclusively established that Gutweniger did not have the approval of the PTT services for the use of an adapter to record the telephone conversations, this provision does not benefit him.

Furthermore, the Federal Supreme Court holds that Art. 179ter para. 1 of the Swiss Criminal Code was rightly applied, as according to the findings of the High Court, Valsangiacomo had not given Gutweniger permission to record his part of the conversation on a…