SWITZERLAND Law and Practice Contributed by: Lukas Bühlmann, Michael Reinle and Michael Schüepp, MLL Legal
Sanctions The DPA provides for criminal sanctions in the case of an intentional infringement of certain provisions (in particular, violation of the duty to inform). In principle, these sanctions are directed against the responsible natural person and not against the company. Fur - thermore, the Federal Data Protection and Informa - tion Commissioner (FDPIC) may investigate data-pro - cessing activities and impose a temporary or definitive limitation, including a ban on processing or a deletion of data. Data subjects may also initiate civil litigation and ask for injunctions (see Article 32 DPA and 1.8 Private Right of Action for Consumers ). As the costs for litigation in Switzerland may be quite substantial, data subjects tend to file complaints to the FDPIC. In the case of an infringement of Article 3 (1)(o) UCA, the affected individual may file a complaint with the civil court and ask for an injunction and for removal of their mail address from the mailing list (Article 9, UCA). Damage claims are rare, as the claimant has to prove effective financial damage. No such civil litigation is on record. There have been a few criminal proceedings dealing with infringement of the UCA. Intentional infringement of Article 3 (1)(o) UCA is sanctioned with imprisonment for up to three years or a monetary penalty (Article 23 UCA). Prison is not realistic for such infringements, but penalties might be awarded. However, in the published case law, the criminal authorities have followed a rather liberal approach. SFCC Principle C.4 (2) No 5 and (3) repeat Article 3 (1)(o) UCA. Consequently, complaints against illicit email marketing can also be filed to the SFCC, which acts upon the request of competitors, recipients of the marketing communication or consumer organisations. It can decide that the marketing is illegal and may publish its decision with full disclosure of the name of the company. The SFCC decides more cases of alleged illegal email marketing than the civil courts and criminal authori - ties.
law, there will be no further evaluation of the GDPR requirements for email marketing. In August 2024, the Federal Council announced the conclusion of the Swiss-US Data Privacy Framework, a counterpart to the EU-US Data Privacy Framework. This new framework will significantly ease data trans - fers between Switzerland and the USA, facilitating co- operation with US-based companies, including those in the marketing sector. Previously, the USA was not considered to have adequate data protection under Swiss and EU laws, necessitating complex compli - ance measures, such as Data Transfer Impact Assess - ments, for companies transferring personal data to the USA. The new framework allows US providers to self-certify, removing the need for additional compliance meas - ures when transferring data to certified providers. However, general data protection provisions still apply, and data subjects must be informed about transfers. The framework’s future remains uncertain owing to potential legal challenges, like those that annulled the previous Privacy Shield agreement. Companies are advised to take precautions, such as by using Stand - ard Contractual Clauses, to mitigate risks in case the agreement is invalidated. Further monitoring of legal developments is recommended. UCA Article 3 (1)(o) UCA deals with email marketing. It gen - erally requires an opt-in by the recipient for email mar - keting. The recipient must also be informed about the option to unsubscribe, and such an opt-out must be possible in an easy manner. Finally, the sender must indicate its correct name and address. There is an exemption from this general rule with respect to existing customers. Opting in is not neces - sary for email marketing to recipients in cases where they have been informed prior to the first marketing mail about the opt-out right, and in cases where the emails contain information about the company’s own products or services, which are similar to the ones purchased or ordered by the respective recipient.
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