SWITZERLAND Trends and Developments Contributed by: Lukas Bühlmann, Michael Reinle and Michael Schüepp, MLL Legal
crimination and human oversight. The Federal Council stressed that the Swiss approach must remain com - patible with that of its key trading partners. Regulation of Large Communication Platforms? According to media reports, the Swiss government’s draft bill on the regulation of large communication platforms has once again been delayed. Initially, the Federal Council had announced publication of a draft by the end of March 2024. This was later postponed to early 2025, and the draft is now expected to be further delayed. The Federal Council’s original resolution envisaged incorporating selected provisions of the EU’s Digital Services Act (DSA) into Swiss law. The objective is to strengthen user rights in Switzerland and to require greater transparency from major platforms. Case Law and Regulatory Practice The effects doctrine in online advertising In a decision of 17 December 2024 (4A_347/2024), the Swiss Federal Supreme Court clarified when a web - site must comply with Swiss unfair competition law. The Court held that the mere fact of accessibility in Switzerland is not sufficient. Otherwise, every unfair act on the internet would automatically have global scope. Instead, under Article 136 of the Private International Law Act, it must be shown that the alleged conduct has market effects in Switzerland. For each country concerned, it must be examined whether a market exists and whether the conduct had an effect on it. The relevant market is where the company’s offer appears, where it competes with potential competi - tors and targets potential customers – in other words, the environment of the potential customer. In the online context, the decisive assessment must be made based on the specific website. The Court identified the following key criteria: • the content of the texts and audiovisual material; • the language used; • country-specific options; • the currency; and • the degree of recognition of the products offered.
In the case at hand, the disputed articles were pub - lished on a news portal that, while accessible world - wide, targeted only four specific countries. Access required users to select Serbia, Croatia, Bosnia and Herzegovina or Slovenia. Content was in Serbian and English, and the reporting focused on contracts with a scope limited to Serbia. The Court therefore concluded that the allegedly unfair campaign primarily affected the Serbian market, and Serbian law – not Swiss law – applied. While not unexpected in light of existing case law and doctrine, this clarification is important in confirming that market effects, not mere accessibility, determine the applica - tion of Swiss unfair competition law. FDPIC guidelines on cookies The FDPIC has published new guidelines that clarify when websites must implement a cookie banner under Swiss law. The FDPIC confirms implicitly that in most cases – particularly for cookies set by the analytics tools and advertising networks of major platforms – a banner will be required. A mere reference in a privacy policy is not sufficient. The key points of the guidelines are as follows. • Obligation to implement a banner: in “qualified cas - es” a cookie banner is mandatory; a simple privacy notice does not meet the requirement. • Qualified cases: according to the guidelines, a case is considered “qualified” where special categories of personal data are processed or high-risk profil - ing takes place. In practice, this means that the use of common third-party tools often makes it difficult to reliably exclude such processing. • Exemptions: no banner is required where only technically essential cookies are used (eg, for shopping cart functionality or load balancing). • Banner design: explicit consent (opt-in) is required, and granularity must be offered – a single “accept all” button is not sufficient. • Personal data: the FDPIC refrains from resolving the debate on “singularisation” and recommends assuming that personal data is processed in the case of doubt, particularly when using the tools in question.
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