SWITZERLAND Law and Practice Contributed by: Dirk Spacek, Wenger Plattner
1. Online Services and Products 1.1 Online Harms or Digital Services Legislation 1.1.1 Key Obligations for Online Services
platform size or type. However, distinctions may arise from practice or guidance. • Telecommunications vs other online services – providers of public communication networks (TCA) face stricter obligations regarding data security, traffic monitoring, data retention, and co-operation with authorities (eg, under the Federal Act on Surveillance of the Swiss Post and Telecommuni - cations Traffic, FAST, SR 780.1). Certain types of online service providers can sometimes qualify as “providers of derived communication services” (eg, cloud or OTT (Over-The-Top) service providers) and may therefore be subject to increased data reten - tion and co-operation duties with authorities under the FAST. • User-generated content platforms – voluntary content moderation recommendations from the Federal Council emphasise platforms hosting sig - nificant user content, particularly large-scale social networks, to implement more robust measures against illegal content. It is worth mentioning that so far, Swiss case law has only confirmed contribu - tory civil liability for personality-infringing content to hosting providers (BGE 139 III 209) whereas it has denied such liability for online copyright viola - tions to access providers (BGE 145 III 72). • Commercial vs non-commercial platforms – com - mercial providers must comply with stricter trans - parency, privacy and liability expectations, while private or small-scale platforms face fewer regula - tory pressures. Swiss regulation currently focuses on the nature of content and service function rather than rigid legal categorisation by size or reach. Future legislation may introduce such distinctions over time. 1.1.3 Relevant Regulators and Enforcement Switzerland does not have one single dedicated regulator for online content or digital services, unlike the EU’s Digital Services framework. Enforcement is scattered across authorities depending on the type of obligation at stake. • Federal Data Protection and Information Commis - sioner (FDPIC) – oversees compliance with the FADP. Powers include conducting investigations,
Switzerland does not yet have a comprehensive, dedi - cated law equivalent to the EU Digital Services Act. Obligations for online service providers to avoid online harm are primarily derived from the Swiss Criminal Code (CC, SR 311.0), the Swiss Civil Code (SCC, SR 210), the Swiss Federal Act on Data Protection (FADP, SR 235.1), and sectoral statutes like, eg, the Swiss Telecommunications Act (TCA, SR 784.10). Key obligations in these statutes may include the fol - lowing. • Content moderation and removal – providers must prevent or remove criminal content, eg, hate speech, child sexual abuse material, or criminal threats as well as personality-infringing content (CC, Articles 135–197 and SCC, Article 28 et seq). Voluntary measures are emphasised, guided by the Federal Council’s recommendations on online moderation. • Transparency – clear terms of service and informa - tion on moderation policies must be provided to users (FADP, Articles 13–15). • Data protection and security – adequate technical and organisational measures to safeguard personal data are required (FADP, Articles 7–10) as a lack thereof could expose individuals to harm. • Co-operation with authorities – providers must reasonably assist law enforcement in investigations and preserve relevant data when requested (CC, Article 302 et seq). While there is no specific Swiss “digital services act”, the Federal Council has signalled that future Swiss legislation generally aims to align with international standards. 1.1.2 Categories of Platforms Switzerland’s laws do not categorise platforms like under the EU Digital Services Act. Obligations under the legal statutes mentioned in 1.1.1 Key Obligations for Online Services apply in general, regardless of
76 CHAMBERS.COM
Powered by FlippingBook