Swiss jurisprudence about hyperlinks and virus tools

By EDRi · October 8, 2003

The appeal court of Zurich (Obergericht) recently published an interesting
ruling about hyperlinks. Linking to an anti-racism page which contains
links to hate sites does not breach Swiss anti-racism law. A former
professor of computer science was accused of racism by setting a link to
the site www.stop-the-hate.org. Both in first instance in 2000 and in this
appeal he was fully acquitted on all charges.

This American-based website is online since 1992 and contains annotated
hyperlinks to hate sites. The public prosecutor argued that the former
professor had made the content of the site his own. To prove this, the
prosecutor launched the remarkable theory that the web should be seen as a
book, because of the ‘forward’ and ‘back’ buttons in browsers melting
linked sites in unity.

The Swiss Internet User Group “finds the behaviour and the substantiation
of the public prosecutor incomprehensible. All the more SIUG welcomes the
rulings in first instance and from the appeal court, that both state that
creating a link on a website does not automatically lead to identification
with the contents.

Earlier this summer, the highest, Federal Court in Switzerland ruled that
selling instructions on how to build viruses is illegal. According to the
courts ruling, it’s illegal to publish even partial instructions on how to
build programs that harm data.

The case began in the spring of 1996, when a 33-year old man closed a
license agreement with an American group to distribute the American
version of a CD-ROM in Europe and consequently offered the CD for sale
online. The disk did not contain an executable virus-program, but
instructions and references to software that might infect or disrupt data
or make them useless.

After a long legal procedure, the Federal Court confirmed an earlier
judgement of the appeal court of Zurich, condemning the man to 2 months
prison sentence and a fine of 5.000 Swiss franks (3.227 Euro).

SIUG press release ‘Links auf Webseiten nicht strafbar’ (30.09.2003)
https://your.trash.net/pipermail/siug-announce/2003-October/000087.html

Bedingt Gefängnis für gewerbsmässige Datenbeschädigung (10.09.2003)
http://www.nzz.ch/2003/09/10/il/page-newzzDKF3EE2Q-12.html

Ruling in CD-ROM case (06.08.2003)
http://wwwsrv.bger.ch/cgi-bin/AZA/JumpCGI?id=06.08.2003_6S.499/2002

(With the kind help of Felix Rauch, SIUG)