Facts
The case concerns TV game shows that were conducted on the television channels [A.] Switzerland ("[C.] ") and [B.] Switzerland ("[D.] ") from July 2005 to January 2006. Viewers could participate in the game shows by calling a premium-rate number at a cost of CHF 1.50 per call. In addition, there were also free participation options via the Internet and WAP. The district office of the Zurich district initiated criminal proceedings against the managing director of the responsible company [Y. AG] , [X.] , on suspicion of violations of the Federal Act on Lotteries and Commercial Betting.
The High Court of the Canton of Zurich ultimately found [X.] guilty of violations of the Lottery Act and sentenced him to a fine of CHF 7,000. In addition, assets in the amount of CHF 200,000 were confiscated.
Considerations
The Federal Supreme Court upheld the judgment of the High Court. It concluded that the TV game shows were to be classified as lottery-like undertakings within the meaning of the Lottery Act. Even though the free participation options via the Internet and WAP were generally available, the average viewer was unable to recognize based on the presentation and design of the broadcasts that these free participation options offered the same winning chances in…