SWITZERLAND Law and Practice Contributed by: Lukas Bühlmann, Michael Reinle and Michael Schüepp, MLL Legal
Criminal Law Actions Criminal law actions are, in principle, directed against individuals. The individual who is responsible for the criminal conduct will be liable. If criminal conduct is committed in the course of the business activities of a legal entity, it is often not that easy to determine the responsible individual. In that case, criminal authorities often investigate the direc - tors or employees who were in charge of marketing decisions in the first investigation phase. Criminal proceedings are not often directed against third parties, unless, for example, the investigations reveal that such third parties might in effect be more responsible than the directors or employees of the advertiser. 1.4 What Is Advertising? Not all the relevant provisions refer to the term “adver - tising”, and the understanding of advertising or similar terms in the various provisions is not identical. What the provisions have in common is that they are based on a broad understanding of the term. For example, many of the provisions in the law against unfair com - petition are applicable to any “indications” as long as they are potentially relevant for competition. Similarly, self-regulation of the SFCC applies to “commercial communication”. This is defined as any measure that systematically influences a certain number of people in their attitude towards certain products or business relationships for the main purpose of concluding a legal transaction or preventing it. 1.5 Pre-Approvals There is no general rule requiring the pre-approval of advertising. However, there are special provisions in certain highly regulated areas, such as the advertis - ing of certain pharmaceuticals (see Article 23 of the Ordinance on the Advertising of Pharmaceuticals). 1.6 Intellectual Property and Publicity Rights In addition to the laws on intellectual property, Article 3 (1)(d) UCA is particularly important in this respect. It prohibits measures that are likely to cause con - fusion with the goods, works, services or business operations of another party. Article 3 (1)(e) UCA is also important in practice. According to this provision, it is
Subject to strict conditions, preliminary injunctions may be requested. Criminal Authorities The UCA and the other general regulations mentioned in 1.1 Primary Laws and Regulation provide for crimi - nal sanctions in the case of an infringement, which are enforced by the cantonal criminal authorities. Arti - cle 23 UCA sets out that intentional infringement of Article 3 UCA (among other provisions) is sanctioned with imprisonment of up to three years or a monetary penalty of up to CHF540,000. Criminal courts only ini - tiate investigations based on complaints by competi - tors, consumer organisations or consumers with the capacity to sue in the sense of Articles 9 and 10 UCA. SFCC The SFCC enforces its own principles (see 1.1 Pri- mary Laws and Regulation ). The procedure is rather streamlined, including template complaint forms and the absence of oral hearings. It is initiated upon request and ends with a non-binding decision. The decisions are published. 1.3 Liability for Deceptive Advertising Civil Law Actions In the case of civil law litigation, the legal entity will be held liable where an employee or director, in the course of the business activities of the entity, commit - ted the infringement. However, the UCA also permits litigation against indi - viduals if no legal entity is involved or if an employee or director acts outside their business activity (eg, if a director posts deceptive claims about a competitor on their private X (formerly Twitter) account). Injunctions and deletion requests are not dependent on culpability. Therefore, a claimant may, for exam - ple, ask an advertising agency or hosting provider to cease displaying deceptive advertising. The most important issue in claims against third parties is often whether they are effectively in control of the infringing activities (ie, whether they have the competence to stop deceptive advertising, for instance).
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