SWITZERLAND Law and Practice Contributed by: Lukas Bühlmann, Michael Reinle and Michael Schüepp, MLL Legal
may request that the automated individual decision be reviewed by a natural person (Article 21 (2) DPA). If a chatbot is used, it should therefore be assessed whether automated decisions with legal or other sig - nificant implications are involved and, if so, whether the requirements can be met or whether an exception applies (such as informed consent of the data sub - ject). It should also be noted in this context that con - sent, if required, must be explicit if the data process - ing by a chatbot involves “high-risk profiling”. Profiling is defined as any automated processing of personal data consisting in using such data to evaluate certain personal aspects relating to a natural person – in par - ticular, to analyse or predict aspects relating to that natural person’s:
SO) have to be observed – specifically, Articles 35 et seq and Article 68 FinSA. Pursuant to Articles 35 et seq FinSA, anyone mak - ing a public offer of securities is required to publish a prospectus containing key information for inves - tors. Article 68 FinSA sets out specific provisions for the advertising of financial instruments, including the requirement to clearly identify the advertisement as such and to refer to the prospectus. In specific cases, if a crypto-asset would qualify as a unit of a collective investment scheme, the specific rules of the Collective Investment Scheme Act (CISA) apply. However, in any case, the rules of the UCA have to be adhered to. 9.2 Metaverse There are no specific rules or regulations regarding advertising within the metaverse. However, the regula - tions that apply to advertising in general also apply to advertising activities in the metaverse. In this regard, the UCA and the guidelines on fairness in commercial communication provided by the SFCC are particularly relevant. According to the UCA and the previously mentioned guidelines, commercial communication (advertising) should not: • disparage or deliberately ridicule other companies, persons, products or commercial activities; • present a person or organisation as more favour - able (than others) by communicating inaccurate or misleading representations or statements; • imitate other (pre-existing) products or services in a way that might lead to confusion with said pre- existing products or services; • use inaccurate or subjective test results in order to promote a product or service; • use inaccurate or unlawful indications of origin (eg, Swiss cross for products that do not originate from Switzerland); and • disguise the commercial purpose of advertising (eg, where an influencer receives a remuneration for the promotion of a product, but their followers
• performance at work; • economic situation; • health; • personal preferences;
• interests; • reliability; • behaviour; and • location or change of location. See Article 5 littera f DPA.
High-risk profiling is defined as profiling that entails a high risk for the personality or fundamental rights of the data subject by leading to a combination of data that allows an assessment of essential aspects of the personality of a natural person (Article 5 littera g DPA). 9. Web 3.0 9.1 Cryptocurrency and Non-Fungible Tokens (NFTs) There are no specific rules or regulations regarding the advertising, marketing or sale of cryptocurrency and/ or non-fungible tokens (NFTs); rather, the application of rules and regulations depends on the legal qualifi - cation of the crypto-asset in question. In particular, if a crypto-asset qualifies as a security, the rules regarding offering and advertising under the Financial Services Act (FinSA) and the Financial Services Ordinance (Fin -
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