SWITZERLAND Law and Practice Contributed by: Lukas Bühlmann, Michael Reinle and Michael Schüepp, MLL Legal
6.2 Telemarketing In relation to automated telemarketing, the same rules apply as for email marketing (see 6.1 Email Market- ing ). For other types of telemarketing, Article 3 (1)(u) UCA sets out that telemarketing to recipients with a respec - tive opt-out notice in the telephone registry or to recip - ients that have no entry in the registry is prohibited, unless there is a business relationship with the recipi - ent or there is informed consent of the recipient. It is also prohibited to make advertising calls without displaying a telephone number that is listed in the tel - ephone directory and is authorised to be used (Article 3 (1)(v), UCA). Not only is it prohibited to make such marketing calls, but it is also explicitly prohibited to rely on information obtained as a result of a breach of these provisions (Article 3 (1)(w), UCA). Sanctions for this infringement are the same as explained in 6.1 Email Marketing ). Similar rules are included in Principle C.4 (2) No 4 of the SFCC. The SFCC has to deal with illicit telemar - keting on a regular basis. Since 1 September 2024, health insurers are specifi - cally prohibited from making cold calls through their employees or external partners. A cold call is defined as initial contact with potential customers: • with whom no business relationship exists; • who have not been insured for more than 36 months; • who have exercised their opting-out right; or • where the contact is not based on a referral by a third party known to the potential customer(s). Breaches of these rules may lead to fines of up to CHF100,000. 6.3 Text Messaging Marketing communication spread by means of text messaging is subject to the same rules as email mar - keting. See 6.1 Email Marketing .
6.4 Targeted/Interest-Based Advertising General Remarks The general rules for targeted/interest-based advertis - ing are set out in the DPA. Whether additional rules apply must be assessed on a case-by-case basis. Should the effective communication take place in the form of (personalised) email marketing, the specific regulations regarding email marketing would apply as well (see 6.1 Email Marketing ). Data Privacy Law When using web tracking or retargeting tools, it is dif - ficult to ensure that no personal data within the mean - ing of the DPA is processed, even if at first sight the tools appear to process only IP addresses. The FDPIC therefore recommends assuming that personal data is processed in cases of doubt. In this case, the general data-processing principles apply as set out in Article 6 DPA, as well as the duty to inform (Articles 19–21 DPA): • the data subjects must be informed about the data processing (in particular, about the identity and contact details of the controller, the collected data, the purpose of the processing and the recipients of the data); • the data processing must be proportionate (ie, only as much data as is necessary for the purpose may be collected and processed); and • personal data may only be processed for a speci - fied purpose and only in a way that is compatible with that purpose. Consent may only be mandatory if the processing vio - lates the general data-processing principles or if spe - cial categories of data (eg, health data) are disclosed to third parties (Article 30 DPA). Furthermore, a special provision applies to the use of cookies and similar technologies, according to which information must be provided about the purposes of cookies as well as the possibility of rejecting them (see Article 45c of the Telecommunications Act). The interplay of the above rules will in most cases of inter - est-based advertising lead to the requirement to use a cookie banner that transparently informs about the data processing. This was recently confirmed by new FDPIC guidelines on the use of cookies and similar
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