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What penalties can one expect if an employee of a daily allowance insurance sends documents including sensitive data to the wrong person?

March 14, 2025

Criminal law

As an employee of a daily allowance insurance, sending sensitive data to the wrong person can lead to various legal consequences.

First, the employee has the duty to perform the entrusted work carefully and to safeguard the legitimate interests of the employer in good faith (Art. 321a Abs. 1 OR). This also includes the duty of confidentiality and the protection of trade secrets, even after the termination of the employment relationship (Art. 321a Abs. 4 OR).

The unauthorized disclosure of sensitive data constitutes a violation of professional secrecy, which is punishable under Art. 321 StGB. Clergy, lawyers, defense attorneys, and other professions that are obligated to confidentiality may be punished upon request with imprisonment of up to three years or a fine (Art. 321 Abs. 1 StGB).

Moreover, it depends on whether the act was committed intentionally or negligently. The negligent violation of professional secrecy is also punishable if the necessary caution has not been observed (Art. 12 Abs. 3 StGB).

In addition to criminal consequences, civil liability for the damage caused may also be considered. The employee is responsible for any damage he or she intentionally or negligently causes to the employer (Art. 321e Abs. 1 OR).

Additionally, there are also obligations regarding the reporting of a data security breach. The report must include the nature of the breach, the time and duration, the categories and number of affected personal data and individuals, as well as the measures taken (Art. 15 Abs. 1 DSV).

In a case where an employee repeatedly violated professional secrecy, the court recognized a punishment of 180 days with a fine of 60 CHF per day, showing that significant penalties can also be imposed (6B_357/2022).

In summary, the employee faces both criminal and civil consequences, including possible imprisonment or fines, as well as liability for the damage caused. This depends on the exact circumstances and the employee's fault.

Sources

Art. 321a Abs. 1 OR

1 The employee must perform the work assigned to him or her diligently and safeguard the legitimate interests of the employer in good faith.

Art. 321a Abs. 4 OR

4 The employee must not use or disclose confidential facts, namely manufacturing and business secrets, of which he or she has gained knowledge during the employment relationship; even after termination of the employment relationship, he or she remains obligated to confidentiality as far as it is necessary to protect the legitimate interests of the employer.

Art. 321a Abs. 1 OR

1 The employee must perform the work assigned to him or her diligently and safeguard the legitimate interests of the employer in good faith.

Art. 321a Abs. 4 OR

Swiss Penal Code of December 21, 1937 > Second Book: Special Provisions > Eighteenth Title: Criminal Offenses against Official and Professional Duties > Violation of Professional Secrecy

Art. 321 Abs. 3 StGB

The violation of professional secrecy is also punishable after the termination of professional activity or studies.

Art. 321 Abs. 1 StGB

1. Clergy, lawyers, defenders, notaries, patent attorneys, auditors obligated to confidentiality under the Code of Obligations, doctors, dentists, chiropractors, pharmacists, midwives, psychologists, nursing professionals, physiotherapists, occupational therapists, nutritionists, optometrists, osteopaths, and their assistants, who disclose a secret that has been entrusted to them in the course of their profession or that they have perceived in its execution, shall be punished upon application with imprisonment of up to three years or a fine.

Art. 321 Abs. 2 StGB

Students are also punished if they disclose a secret that they perceive during their studies.

Art. 321 Abs. 4 StGB

2. The offender is not punishable if he discloses the secret on the basis of consent from the entitled person or a written permit granted by the superior authority or supervisory authority at the request of the offender.

Art. 321 Abs. 5 StGB

3. Federal and cantonal provisions regarding reporting and participation rights, regarding the duty of testimony, and regarding the duty to provide information to an authority remain reserved.

Swiss Penal Code of December 21, 1937 > Second Book: Special Provisions > Eighteenth Title: Criminal Offenses against Official and Professional Duties > Violation of Professional Secrecy

Art. 321 Abs. 3 StGB

The violation of professional secrecy is also punishable after the termination of professional activity or studies.

Art. 321 Abs. 1 StGB

Art. 321 Abs. 2 StGB

Students are also punished if they disclose a secret that they perceive during their studies.

Art. 321 Abs. 4 StGB

Art. 321 Abs. 5 StGB

3. Federal and cantonal provisions regarding reporting and participation rights, regarding the duty of testimony, and regarding the duty to provide information to an authority remain reserved.

Swiss Criminal Code of December 21, 1937 > First Book: General Provisions > First Part: Crimes and Offenses > Second Title: Criminal Liability > 2. Intent and Negligence. > Terms

Art. 12 Para. 3 StGB

3 A crime or offense is committed negligently by anyone who does not consider or take into account the consequences of their behavior due to a breach of duty through carelessness. Carelessness is a breach of duty when the perpetrator does not observe the caution they are obligated to according to the circumstances and their personal situation.

Art. 12 Para. 1 StGB

1 Unless the law expressly states otherwise, only those who commit a crime or offense intentionally are subject to punishment.

Art. 12 Para. 2 StGB

2 A crime or offense is committed intentionally by anyone who acts with knowledge and will. One already acts intentionally who considers the realization of the act to be possible and accepts it.