In its ruling 7B_733/2024 of 31 January 2025, the Federal Supreme Court ruled that the Office of the Attorney General of Switzerland does not have access to the data it had previously secured in connection with Covid-related transactions as part of its criminal investigation against the former head of communications at the Federal Department of Home Affairs and the CEO of Ringier AG. The focus was on determining whether there had been a breach of official secrecy due to the disclosure of confidential information to the media. This article explains how the Federal Supreme Court justified its ruling.
Background to the case: coronavirus leaks and breach of official secrecy
The dispute over the Federal Prosecutor’s Office’s access to data dates back to a criminal complaint filed by the Control Committees of the National Council and Council of States in 2020. This originally related to the so-called ‘Crypto affair’ and was directed against persons unknown for breach of official secrecy.
In the course of the investigation, the extraordinary federal prosecutor came across chance findings that gave rise to suspicions against Peter Lauener, the then head of communications at the Federal Department of Home Affairs (EDI). Lauener is alleged to have passed on confidential information about the Federal Council’s Covid-19 business to the CEO of Ringier AG on several occasions. The Federal Prosecutor’s Office subsequently expanded its investigations.
In May 2022, house searches were carried out at Lauener’s home and at the CEO of Ringier AG. Various electronic devices, including laptops and mobile phones, were seized. The persons concerned immediately requested that the data be sealed to prevent it from being evaluated by the criminal prosecution authorities.
Source protection outweighs criminal prosecution interests
In 2022, the Office of the Attorney General filed a request to unseal the seized data. This was rejected by the coercive measures court of the Canton of Bern in May 2024. Now, the Federal Supreme Court has also finally dismissed the Office of the Attorney General’s appeal.
The Federal Supreme Court based its decision on Article 172 of the Criminal Procedure Code, which guarantees source protection for media professionals. This protects not only journalists themselves, but also their sources and the content of their editorial research. In principle, media professionals can refuse to give evidence, and documents originating from their journalistic activities are protected from seizure.
The only exception to this protection is if:
- a serious criminal offence has been committed, or
- a witness statement is necessary to avert an immediate danger to life and limb.
Since the offence of breach of official secrecy is not one of the exceptions listed in Art. 172 para. 2 of the Criminal Procedure Code, source protection remains unrestricted in this case.
The Office of the Attorney General argued that source protection was being misused in this case. In its view, the flow of information did not serve to expose abuses, but rather to influence the executive branch politically. The Federal Supreme Court rejected this argument and clarified that the informant’s motive is not decisive for the application of source protection. Even if the informant had acted unfairly, the relationship of trust between journalists and their sources remains a priority. The legislature deliberately decided to give this protection greater weight than the interest in criminal prosecution in order to guarantee a free press.
Significance of the ruling for the media landscape
The Federal Supreme Court’s ruling sends a strong signal for press freedom in Switzerland. It confirms the high level of protection afforded to journalistic sources and makes it clear that even investigations into breaches of official secrecy cannot override this principle.
For media professionals, this means confirmation of their legal protection when working with confidential information. At the same time, however, the case also highlights the limits of this protection: if an offence is covered by the list of exceptions in Article 172(2) of the Criminal Procedure Code – such as a serious criminal offence – source protection could be breached.
Conclusion: press freedom strengthened, but discussion not over
With this ruling, the Federal Supreme Court confirms the high hurdle for unsealing journalistically protected data, strengthens source protection and thus confirms a central pillar of media freedom. While this is justified under the rule of law, the question remains open as to whether absolute application of source protection is appropriate in every case. The decision also raises fundamental questions about media ethics and the need for legislative adjustments to source protection. It remains to be seen whether the legislature will make adjustments in the future to create a more differentiated regulation for cases such as this, especially in cases of suspected abuse of journalistic structures to circumvent criminal law norms. In short, the ruling has significant implications for the balance between media independence and effective law enforcement.
For media professionals and informants, however, one thing remains clear: the protection of journalistic sources is highly valued in Switzerland – and this has been reaffirmed by the latest ruling.
In light of the latest trends in the media industry, particularly in relation to artificial intelligence and copyright-protected content created by media professionals (see also our previous articles: Ancillary copyright for media companies: remuneration for online snippets planned in Switzerland, Copyright challenges in training artificial intelligence (AI)), this ruling by the Federal Supreme Court represents a positive development in that it emphasises the importance of journalistic sources.
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