SWITZERLAND Law and Practice Contributed by: Lukas Bühlmann, Michael Reinle and Michael Schüepp, MLL Legal
1.10 Taste and Cultural Concerns A special feature and challenge are the three different language regions in Switzerland, all of which also entail different cultural perceptions. In the authors’ experi - ence, advertising in Switzerland appears reserved and is generally not very aggressive. In the authors’ opin - ion, this is more likely owing to cultural aspects than to legal practice. After all, the courts in Switzerland tend to be liberal and advertising-friendly compared to other countries (especially Germany). This can also be explained by the tendency to assume that the average addressee of an advertisement (for details, see 2.1 Deceptive or Misleading Claims ) is reasonable and not in need of protection. 1.11 Politics, Regulation and Enforcement Commentators suggest that the change of govern - ment in the USA and its subsequent policies have also influenced Switzerland’s regulatory approach. There appears to be hesitation to introduce rules for the digi - tal economy similar to those recently adopted in the EU, as such measures would primarily affect major US technology companies. Examples of this devel - opment can be seen in the Federal Council’s sector- specific approach to AI regulation and in the repeated postponement of the draft bill on large communication platforms. According to the case law and literature, only the con - tent or meaning attributed to a claim by the average addressee is decisive, taking into account all the cir - cumstances of the case. The understanding of the average addressee is deter - mined in three steps. • Determining the addressees to whom the informa - tion is directed (eg, their age, social position or location). • Clarifying the knowledge and skills of the average addressee represented by the target group, includ - ing their: (a) education; (b) language skills; 2. Advertising Claims 2.1 Deceptive or Misleading Claims
(c) previous knowledge or understanding; (d) low level of knowledge; and (e) attention (eg, place of claim, advertising me - dium and advertising situation). • Assessing how the average addressee under - stands the claims. This assessment is a legal question and requires an objective judgement. Therefore, “misleading or inac - curacy rates” based on surveys cannot be used as a means to proof for the relevant understanding. How - ever, surveys submitted by the claimant may nonethe - less affect the assessment by the judges. 2.2 Regulation of Advertising Claims The UCA – in particular, Article 3 (1)(b) – may cover both express and implied claims. Whether an implied communication is a claim in the sense of the UCA must be assessed based on the understanding of the average addressee (see 2.1 Deceptive or Misleading Claims ). In general, only verifiable factual statements that are assessable with evidence qualify as claims in the sense of Article 3 (1)(b) UCA, contrary to pure value judgements. However, value judgements may dispar - age others and thereby violate Article 3 (1)(a) UCA. 2.3 Substantiation of Advertising Claims Claim substantiation depends on the nature of the claim in question. Substantiation for misleading claims is different to substantiation for inaccurate claims. As mentioned under 2.1 Deceptive or Misleading Claims , it is decisive whether or not the average addressee is misled. The standard is therefore not whether a substantial part of the addressees might be misled. In ordinary proceedings, the court must be convinced, based on the evidence submitted, that an infringe - ment is highly probable (almost 100% probability). In cases of preliminary injunctions, the claimant must convince the court that an infringement is plausible. However, Swiss courts tend to apply a rather high standard.
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