SWITZERLAND Law and Practice Contributed by: Lukas Bühlmann, Michael Reinle and Michael Schüepp, MLL Legal
5.2 Liability for Third-Party Content Injunction and deletion claims are generally independ - ent of the culpability of the advertiser. Consequently, an infringed individual or legal entity may initiate litiga - tion against the advertiser, and ask them to stop the posting of third-party content on the advertiser’s web - site or social media channels and to have it removed. In contrast, damage claims are generally not avail - able against an advertiser for illicit third-party content. However, if the advertiser was notified about the illicit content and did not remove it, the advertiser could become culpable (jointly with the main infringer) for the illicit post. In that case, a damage claim might be possible. 5.3 Disclosure Requirements There are generally no special requirements for disclo - sure regarding advertising on social media as opposed to traditional media (see 2.7 Disclosures ). However, the implementation of the disclosure requirements may differ. These must be assessed on a case-by- case basis. 5.4 Requirements for Use of Social Media Platforms No unique rules or regulations apply to the use of the major social media platforms. However, Principle B.15 of the SFCC concretises certain general principles in the UCA for social media platforms (see 5.1 Special Rules Applicable to Social Media and 5.5.1 Special Rules/Regulations on Influencer Campaigns ). 5.5 Influencer Campaigns and Online Reviews 5.5.1 Special Rules/Regulations on Influencer Campaigns There is no specific statutory provision dealing with influencer campaigns. The general provisions men - tioned in 1.1 Primary Laws and Regulation apply. However, Principle B.15 (2) of the SFCC solidifies the general provisions and specifically deals with influenc - er marketing. In addition to the general separation and transparency principle, it sets out that it is unfair to use social media accounts in order to facilitate commercial communication in favour of third parties, unless the commercial nature of such posts is made transparent. Individuals who receive sponsor donations or similar
compensation for posts must make this commercial relationship transparent. 5.5.2 Advertiser Liability for Influencer Content There is no case law in respect of advertisers being held responsible for content posted by their influenc - ers. However, the applicable rules in cases of influenc - er marketing are generally directed against the imme - diate infringer (ie, the influencer). In the cases decided by the SFCC (see 5.5.1 Special Rules/Regulations on Influencer Campaigns ), the respondent was always the influencer. 5.5.3 Consumer Reviews No specific rules apply to the collection and use of consumer ratings, and therefore the same standards apply as in the assessment of other advertising meth - ods (see 1.1 Primary Laws and Regulation ). Thus, for example, when collecting customer reviews by email, the guidelines for email marketing must be observed (see 6.1 Email Marketing ) and the advertising with customer reviews must be true and not misleading (see 2.1 Deceptive or Misleading Claims ). The collection of email addresses is subject to the DPA. This means that the general data-processing principles (fairness, proportionality, transparency, pur - pose limitation, storage limitation, accuracy, integrity and confidentiality; see Articles 6 and 8) must be com - plied with and information must be provided about the data processing (see Articles 19–21). Unless the general data-processing principles are violated and no special categories of personal data (eg, health data; see Article 5 littera c) are disclosed to third parties, no legal basis (such as consent) is required under Swiss data privacy laws (however, see below regarding the UCA). Please note that the General Data Protection Regula - tion (GDPR) might apply to entities with a registered seat in Switzerland (Article 3 (2), GDPR). The GDPR might therefore affect data collection and processing for email marketing. As this chapter focuses on Swiss 6. Privacy and Advertising 6.1 Email Marketing Data Privacy Laws
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