SWITZERLAND Trends and Developments Contributed by: Anna Neukom Chaney, Julien Boulter, Rolf Schuler and Marco S. Meier, Binder Legal
FADP, the imminent risk of jeopardising a success - ful conclusion of the internal investigation provides justification for postponing the providing of spe - cific information at least until the relevant data has been secured. Further, the general information that personal data may be processed for the purpose of conducting internal investigations is often already provided in privacy statements, contracts, policies or employee handbooks. Legal hold notices are frequently issued (ie, a notice to the employee(s) concerned that no data relevant to the internal investigation may be destroyed). • Proportionality when analysing data, particularly when checking email accounts – The systematic analysis of the data secured during an internal investigation must comply with the principle of proportionality. When analysing emails, for exam - ple, it must therefore be ensured that private messages are not taken under review. A common way to address this is to instruct employees not
to use business email accounts or infrastructure for private matters or, if private use is permitted, to label the data accordingly. Ideally, either technol - ogy-based search tools or the four-eyes principle should be applied when screening data, or exter - nal counsel involved. Moreover, it is important to ensure that the group of people viewing the data is as small as possible (so-called need-to-know principle). • Concluding data processing agreements with external consultants – Once external consultants are involved, it may be necessary to enter into a data processing agreement to ensure compli - ance with data protection law. If data is analysed abroad (eg, in the context of international groups), additional measures may be needed on a case-by- case and country-specific basis. Furthermore, clear instructions regarding the data protection stand - ard that is expected must be provided to external consultants.
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