SWITZERLAND Law and Practice Contributed by: Dirk Spacek, Wenger Plattner
issuing binding recommendations and imposing administrative measures; the new FADP (effec - tive 2023) allows for criminal sanctions for serious breaches against individuals in charge of data processing. • The Cantonal and Federal Law Enforcement Authorities enforce the CC (Criminal Code) regard - ing illegal online content. Powers include ordering content removal, seizing data, and prosecuting of criminal offences. • The Federal Office of Communications (OFCOM) supervises compliance for telecommunication and public communication platforms under the TCA. It can issue warnings, enforce technical requirements and impose administrative fines. Switzerland’s approach relies on different existing sectoral regulators rather than a centralised digital services authority, and no EU-style Digital Services Co-ordinator designation exists. Investigative powers are reactive and case-specific. 1.2 E-Commerce 1.2.1 Principal E-Commerce Legislation In Switzerland, e-commerce and online contracting are primarily governed by the Swiss Code of Obliga - tions (CO, SR 220), which sets out general rules on contracts, offer and acceptance, and electronic signa - tures (Articles 1–40, CO for general contract formation; Article 14, CO allows electronic signatures, unless a written signature is required by law). The CO also cov - ers provisions on codified types of contracts (eg, sales contracts, service agreements or work agreements) which may also apply in e-commerce, depending on the contract at stake. Complementary legislation includes: • Federal Act on Electronic Signatures (ESigA, SR 943.03) – recognises qualified electronic signatures as legally equivalent to handwritten signatures, enabling secure online contracting; • FADP – regulates the collection, processing, and storage of personal data during e-commerce trans - actions; • Federal Act against Unfair Competition (FAUC, SR 241) – applies to misleading advertising and online commercial practices; and
• sectoral rules – eg, TCA for online service provid - ers. Swiss law generally treats online contracts similarly to offline contracts, emphasising consent, transparency, and contractual obligations, without introducing sepa - rate legal regimes for digital commerce. Switzerland follows a “technology-neutral” approach. 1.2.2 Key Obligations for Online Contracting Key Obligations for Businesses Contracting Online in Switzerland Under Swiss law, businesses engaging in online con - tracts must comply with obligations primarily derived from the CO, the FADP, the FAUC and sectoral rules. Key obligations include the following. • Contract formation and clarity – offers, acceptance and terms must be clear and unambiguous (CO, Articles 1–10, and specifically 7). Businesses must ensure users understand the terms before conclud - ing contracts. • Electronic signatures – where legally required, qualified electronic signatures (as opposed to other non-qualified electronic signatures like Docusign) can replace handwritten ones (ESigA, SR 943.03). • Transparency and information duties – businesses must inform users about prices, contractual terms as well as data processing practices (CO, Articles 8 and 9, and FADP, Article 19). Note that Switzerland does not provide for mandatory withdrawal rights of consumers (as, eg, provided for consumers in the EU). • Data security obligation – adequate technical and organisational measures are required to safeguard personal data collected during transactions (FADP, Articles 7–10). • Commercial practices under the UCA (Unfair Com - petition Act) – pursuant to the UCA, whoever offers goods, works or services online, must (i) provide clear and complete details of his/her identity and contact address, (ii) indicate the individual steps that lead to the contract being concluded, (iii) provide suitable means for correcting input errors before submitting the order, and (iv) provide imme - diate online confirmation of the customer’s order. Furthermore, misleading advertising practices and
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