The recording of telephone conversations is subject to provisions of civil and public law. The Swiss Civil Code and the Swiss Code of Obligations provide general rules on the protection of personal rights.
The key provisions for the protection of personal rights are set out in Article 28 of the Criminal Code which protects individuals from unlawful intrusions into their personal life and their right to privacy. Article 28 of the Criminal Code was crucial to the development of the Swiss Data Protection Act. Alongside these more general rules, the Swiss Criminal Code specifically sanctions illegally listening in on or illegally recording telephone conversations.
Under Article 179bis of the Criminal Code, any person who listens in on or records a non-public conversation without permission will be punished by imprisonment or a fine of up to Swfr40,000 (US$25,000). A conversation is considered non-public once it cannot be listened to without the assistance of additional technical devices.
Before the revision of the Criminal Code, Article 179quinquies allowed the recording of a conversation with a telephone device authorized by the Swiss Telecom. Listening or recording was only punishable when the perpetrator used a technical device not approved by Swiss Telecom. Having been adjusted to the new telecoms law, the exception of Article 179quinquies now only applies to emergency calls (eg fire department, police). Recording of any other conversation must be approved by all the persons taking part in it.
So far, there are no precedents or doctrine clarifying whether permission must be express or merely implied. In any event, one has to distinguish between conversations held between professional entities and between professionals and private clients.
With regard to conversations between professionals, it is quite common that banks and trading companies tape record telephone conversations. In most cases, they also inform their personnel about such recordings. Persons working in finance and trade are, therefore, likely to be aware that their conversations will be put on tape for various reasons, in particular for the purposes of evidence.
With regard to conversations held between professionals and private clients the situation is different. These parties cannot necessarily be expected to know that their conversation with the bank (for example) will be taped. To such situations the Swiss Data Protection Act (DPA), which entered into force on July 1 1993, applies. The DPA protects the privacy of individuals by restricting the collection and use of personal data. Article 13 Section 2 DPA contains a list of exceptions allowing a person to process personal data. The main idea behind these exceptions is to weigh up the interests of the listener or recorder and their counterpart. For example, the provision allows the processing of personal data directly linked to the conclusion or execution of a contract if the processed data concerns the other contract party.
To sum up, despite remaining questions such as that of the form of approval, the new criminal law provision enhances the protection of the privacy of individuals. Unauthorized recording of telephone conversations is now more likely to be actively sanctioned.