IT law in the fall session 2024

Various IT law topics are on the agenda for the 2024 fall session. For us lawyers, the discussion of the BEKJ is certainly exciting and interesting. In addition, some competition law topics from the digital sector will also be on the agenda. For instance, the parliament will discuss measures against foreign online marketplaces, as well as an improvement to defend against false online ratings.

IT law topics in the National Council:

Protection of rights in the digital sphere: According to the postulate, the Federal Council should be instructed to identify gaps in the protection of individual rights in the digital sphere and to make proposals to improve this protection, particularly with regard to human dignity, integrity and privacy. One possible measure could be the inclusion of a right to digital integrity in the Federal Constitution. A minority of the Political Institutions Committee rejects the postulate. The Federal Council points out that ongoing work, in particular on the regulation of AI, is already dealing with similar issues and that a separate report would not provide any new insights. It therefore considers an integrative examination within the framework of existing projects to be more sensible.
Use of electronic means of communication in cross-border civil proceedings. The Federal Council plans to facilitate the use of electronic means of communication in cross-border civil proceedings by allowing persons in Switzerland to be questioned or heard in foreign civil proceedings by telephone or video conference without prior official approval. This should reduce bureaucracy, avoid trips abroad and strengthen the enforcement of the law. The bill was approved by the responsible committee with a clear majority and will be discussed in the National Council in the fall session. The planned amendment is based on a motion by the Council of States. The Federal Act on Private International Law and Switzerland’s declaration on the Hague Convention on the Taking of Evidence are to be amended. Despite broad approval in the consultation process, there were concerns regarding the inclusion of hearings outside of the evidence procedure and the loss of sovereignty for Switzerland.
Geoinformation Act. The Federal Council wants to give the Confederation and the cantons access to existing underground data in order to promote the sustainable use of geo-resources. To this end, data owners would be obliged to make their geological data available on request. The draft amendment to the Geoinformation Act was submitted to Parliament by the Federal Council after the consultation procedure was completed. The draft has already been discussed in the Council of States and it was decided not to act on it. The National Council’s Committee for the Environment, Spatial Planning and Energy has also decided to refer the draft back to the Federal Council for revision in order to examine the constitutional basis and clarify concerns regarding the possible nationalization of private data. It is now up to the National Council to decide.
Introduction of channel- and business model-independent promotion of electronic media. The motion to introduce independent promotion of electronic media, regardless of the channel or business model, aims to support journalistic content through financial aid. The funding should be based on the number of journalistic jobs and be degressive, with smaller media companies receiving more support per job. This funding should come from the federal budget and be offset by a reduction or abolition of indirect press subsidies under the Postal Services Act. A minority of the Commission rejects the motion. The motion is a response to the structural changes in the media industry and should take effect at the latest after the expiry of the temporary indirect press subsidy. The motion will be dealt with jointly by both chambers in the fall session.
Systematize the exchange of data on illegal migrants. According to the motion, the Federal Council should take measures to systematically exchange relevant data on illegal migrants between cantons, municipalities, social authorities, health insurance funds and social security funds in order to verify their residence status and prevent their presence in Switzerland. The motion aims to reduce the attractiveness of Switzerland for illegal migrants and to expel them in a targeted manner. The Federal Council recommends that it be rejected. As undocumented migrants generally do not register with the authorities if they fear detection, the Federal Council does not consider an automatic exchange of data between the authorities responsible for enforcing social security legislation and those responsible for enforcing the FNIA to be effective in practice. The Federal Council has also already rejected similar measures, as it considers automatic data exchange to be ineffective in practice and has concerns about data protection. The National Council will discuss the motion in the fall session.
Examination of a pilot project for the simultaneous translation of committee meetings using AI-supported programs. According to the postulate, the Office of the National Council should examine whether a pilot project for the simultaneous translation of committee meetings using AI-supported programs is technically and legally feasible. The aim would be to translate the debates into the official languages while ensuring confidentiality in accordance with the Parliament Act. A concrete proposal for implementation, including a cost estimate and an assessment of the benefits and risks, is to be drawn up. Given Switzerland’s multilingualism, this technological solution could enhance the comprehensibility and equality of members in complex discussions. A potential pilot project could be launched in the National Council’s Political Affairs Committee.
Employees in start-ups with company shareholdings should be exempt from recording working hours. After the deadline for the parliamentary initiative was extended several times, it is now to be dealt with in the fall. The relevant articles of the Employment Act (ArG), in particular Article 46, are to be amended so that employees at start-ups that have employee stock option plans (Esop) (models for employee share ownership) can agree to trust-based working hours and do not have to record working hours. Employees of start-ups in possession of Esop should not have to record their working hours (ArGV 1 Art. 9).
- LLAG comment: In IT companies, the recording of working hours generally leads to problems time and again, as developers in particular often enjoy or demand a great deal of freedom and want to organize their working hours freely. An adjustment to the reality is therefore to be welcomed, even if the waiver would still only be possible under narrowly defined rules and only start-ups can benefit from it, it is a step in the right direction.

IT law topics in the Council of States:

Media and artificial intelligence. The interpellation addresses the challenges posed by the use of artificial intelligence (AI) in the media sector, particularly with regard to the protection of property rights of media creators and publishers. The interpellant asks the Federal Council whether the current legal framework is sufficient to protect these rights, how the Federal Council views the problem of AI-based circumvention of payment barriers and whether a possible AI regulation provides for adjustments to relevant laws in order to safeguard the business model of journalism. The Federal Council recognizes the importance of protecting intellectual property and is closely monitoring developments in the field of AI, but does not currently see any immediate need for new legislative measures. It plans to examine the impact of AI in the media sector as part of its investigation into possible regulatory approaches and only then decide on any necessary legislative adjustments.
Federal law on electronic proof of identity and other electronic evidence: The Federal Act on Electronic Proof of Identity (E-ID) and Other Electronic Certificates has already been clearly approved by the National Council and is now being discussed by the Council of States. The Federal Council adopted the bill in November 2023 after an initial version failed in a referendum in 2021. The new e-ID, which will be issued by the federal government, is intended to be secure, voluntary and free of charge, with a focus on data protection and data security. It can be applied for both online and at passport offices and is intended to serve as digital proof of identity in various areas. The National Council approved the law by a large majority, but also added several data protection measures. The Council of States’ Legal Affairs Committee also supported the bill, proposing additional amendments to strengthen cyber security and ensure data security when storing the e-ID. The Council of States will discuss the bill in the 2024 fall session, with the introduction of the e-ID planned for 2026.
Federal Act on Platforms for Electronic Communication in the Judiciary (BEKJ): The law provides for the introduction of a centralized communication platform for the exchange of data in judicial proceedings, which will be set up and financed jointly by the Confederation and the cantons. In short, it aims to replace the postman with an upload system for submissions to the platform. The law takes into account the Justitia 4.0 project and drives it forward. The National Council adopted the law in September 2023. In June 2024, the Legal Affairs Committee of the Council of States completed its detailed deliberations and recommended the law for adoption, but proposed some changes to the text. The Council of States will continue to discuss the bill in the 2024 autumn session.
- LLAG Commentary: The bill is attracting public attention, which is a good thing, as access to justice (a right with constitutional status) is essential for society. The main point of discussion is how deadlines are met if the platform is not available (Art. 26 E-LAJ). Contrary to the general impression, the rule as proposed by the Federal Council (and only slightly modified by the National Council) works well overall. However, there is still some unease. It is being discussed that the alternative submission in paper form provided for in the law (which should be possible at any time, even if the platform is available) is outdated; the alternative submission should also be possible electronically. Be that as it may, the rule of law is not jeopardized by the BEKJ. The National Council will only be able to decide on this issue in the procedure for the revision of differences if the Council of States produces a difference. It is eagerly awaited which path the Council of States will choose or whether it will stick with the National Council’s version.
A level playing field for online marketplaces. The interpellation addresses the uneven playing field between Swiss retailers and foreign online marketplaces such as Shein, Temu or Wish, which often offer products at dumping prices that do not meet Swiss safety standards. This puts domestic manufacturers and retailers at a disadvantage, as they have to bear the additional costs of complying with these standards. The interpellant asks the Federal Council what measures it is taking to enforce the legal requirements for product safety on foreign online marketplaces and whether it is planning a regulation similar to that of the EU that would ban unsafe products from such platforms. The Federal Council explains that although foreign online stores are subject to the Swiss Product Safety Act, they cannot be monitored and supervised directly due to the principle of territoriality. Measures such as the use of AI-based web crawlers and close cooperation with EU authorities are used to ensure the safety of imported products. Further measures as part of the customs law revision and the DaziT program will be implemented to create a level playing field. The Federal Council has no information on possible financial support for foreign online marketplaces by their countries of origin.
For fair competition in the acquiring market for cashless means of payment. For fair competition in the acquiring market for cashless means of payment. The acquiring market comprises services that enable merchants to accept and process card payments. The Federal Council was asked to answer a number of questions as part of the market research into cashless payments. The Federal Council has no current information on the market shares of the acquirers operating in Switzerland, but recognizes the dominant position of Worldline SA. In principle, the current legal framework offers sufficient possibilities to take action against excessive fees in the acquiring market, although the hurdles for the offense of abuse are high. There is no general obligation to disclose fee structures, but merchants are aware of the costs they incur. The price supervisor has already agreed price caps for debit card transactions with Worldline SA. The Federal Council also emphasizes the importance of transparency and fair market conditions in order to protect SMEs in particular from excessive fees.
Federal law on the national system for querying the addresses of natural persons (Address Services Act, ADG). The Federal Council wants to simplify address management and create a National Address Service (NAS) for this purpose. The NAS is intended to enable certain administrative offices and third parties with a legal mandate to query the address data of the resident population throughout Switzerland. The Federal Statistical Office (FSO) would provide the NAS with the address-relevant parts of the personal data that would be supplied to the FSO on a quarterly basis from the communal and cantonal population registers as part of the Register Harmonization Act (RHG). Access to the NAS should be restricted to appropriate purposes in order to comply with data protection. Users should only be allowed to access the data within the scope of fulfilling their defined legal mandate. The FSO should grant access authorizations and monitor compliance with the terms of use. In the Council of States, the 2023 bill was adopted with an amendment that also exempts cantons from fees. The National Council, on the other hand, rejected the 2024 draft for revision, as concerns were expressed regarding its constitutionality and benefits for citizens. Supporters argue that the NAS reduces administrative work and plays an important role in the digitalization of the administration in particular. The State Policy Committee of the Council of States (SPK) rejected a rejection in August 2024 and continues to advocate the adoption of the law, while the National Council insists on amendments.
Unwanted calls. Do we need new measures?: The postulate calls on the Federal Council to draw up a report on the effectiveness of measures to combat unwanted advertising calls, as many complaints about such calls continue to be received despite the revision of the Telecommunications Act (TCA) and the Unfair Competition Act (UCA) in 2019. The report is intended to assess the burden placed on consumers by unwanted calls and make recommendations for improving the existing instruments and legal provisions. In addition, the cooperation between the Federal Office of Communications (OFCOM) and the State Secretariat for Economic Affairs (SECO) is to be examined in order to take measures against companies that act unfairly. The Federal Council is planning a revision of the Telecommunications Act and will examine the issues raised in the postulate as part of this. It recommends the Council of States to accept the postulate.
Implementation of urgently needed cyber security checks: The motion calls for urgently needed cybersecurity audits to be carried out more frequently in Switzerland, as these audits are essential for the protection of society, the economy and the authorities. The Federal Council should create the legal basis and provide financial resources to close this gap. The increase in cyberattacks on authorities and institutions shows the growing threat. However, there is a lack of binding laws and minimum standards for digital products and infrastructures, which means that many insecure applications are entering the market untested. The reasons for the lack of testing are unclear responsibilities, a lack of incentives for the cybersecurity industry and the lack of a mandate from the Federal Office for Cybersecurity (BACS). In order to guarantee Switzerland’s digital security and sovereignty, critical digital products must be continuously audited by independent organizations. This requires the targeted development of capabilities to identify and eliminate digital vulnerabilities that are relevant to public security and supply.
Build up sufficient stocks of microchips to ensure the smooth continuation of Switzerland’s strategically important activities: The motion calls for the Federal Council to set up a strategic unit within the Federal Office for Civil Protection to build up stocks of microchips to safeguard the Swiss economy and government activities in the event of a possible chip shortage. Switzerland’s dependence on Asian countries, in particular Taiwan, harbours risks that should be minimized by such stockpiling. However, the Federal Council rejects the measure as it considers it to be uneconomical and impractical, given the large number and short lifespan of microchips and the unpredictable technological developments. Instead, it is focusing on diversifying trade flows and examining international initiatives to secure supplies. According to the Federal Council, state-organized stockpiling would only shift dependencies and would therefore not be expedient.
Prevent abusive online reviews that damage companies: The motion calls on the Federal Council to examine how companies can be better protected against abusive online reviews. Possible legal measures, the burden of proof, the responsibilities of review platforms and possible sanctions should be examined. The interpellant emphasizes that abusive reviews, often anonymous, can cause considerable damage to companies, while legal defenses are currently inadequate. However, the Federal Council believes that the existing legal basis in the Unfair Competition Act (UCA) is sufficient to take action against false or misleading reviews. It sees no need for additional measures or reports, but will continue to monitor developments in the EU. The Federal Council is asking the Council of States to reject the postulate, but recognizes the potential for strengthening the Confederation’s legitimacy to take action in such proceedings, which is being examined as part of another postulate.
- LLAG commentary: In theory, the Federal Council is of course right; the UCA provides means to combat unfair assessments. In practice, however, taking action is usually difficult and cumbersome. Platforms are often not very reactive and cooperative, and as the reviews are often pseudonymous, it is not so easy to take action against the author. Ultimately, it is also a question of cost; many hospitality businesses simply cannot afford to take legal action.
No transfer of tax data without anonymization: The motion demands that tax data that is transferred to the federal government for statistical purposes be anonymized in advance in order to minimize data protection risks. The draft ordinance on federal statistics provides for the forwarding of a range of non-anonymized tax data from natural persons to the Federal Statistical Office or the Federal Tax Administration. This practice poses considerable security risks, such as potential cyberattacks that could compromise sensitive data. This could jeopardize tax confidentiality as a central element of the relationship of trust between tax authorities and citizens. The Federal Council is therefore requested to ensure that this data is anonymized before transmission in order to preserve tax confidentiality and guarantee data security. According to the federal government’s statement of 28 August 2024, the collection of non-anonymized tax data does not compromise tax confidentiality, as the data is subject to statistical confidentiality, which protects privacy and is essential for reliable impact assessment in tax and social policy and for monitoring poverty in Switzerland. However, non-anonymized tax data is necessary for certain political analyses, such as poverty monitoring or reforms in tax and social policy. Despite this necessity, the motion emphasizes that the risks of data disclosure should be reduced through anonymization.
Create a comprehensive and standardised legal basis for the electronic procedure (eATSG). Create a comprehensive and uniform legal basis for the electronic process in ATSG. This motion instructs the Federal Council to propose an amendment to the Federal Law on the General Part of Social Insurance Law (ATSG). The aim is to create a comprehensive and holistic legal basis for the electronic proceedings (eATSG) for all social insurances. However, the Federal Council considers the solution with DIKOS to be more effective than an exclusive regulation of the matter in the ATSG in order to achieve the digitalization of communication in the social insurance of the 1st pillar/family allowances. Hence, the concerns of the motion would also be largely fulfilled. Therefore, the Federal Council proposes that this motion be rejected. The motion was adopted by the National Council in an amended version. The framework conditions were clarified and the different elements of the two drafts of the eATSG and the Federal Act on Information Systems in Social Insurance (BISS) were better harmonised.
Digitalise AHV at last. The Federal Council is instructed to submit an amendment to the AHVG to provide AHV policyholders with digital access to their contribution and benefit information at all times. While digital access already exists for occupational and private pensions, AHV policyholders currently have to apply in writing for an IC report, which takes a long time to process and is sent by post. In December 2022, the Federal Council instructed the FDHA to promote digital access to pension data. The new Federal Act on Information Systems in Social Insurance (BISS) is intended to create the legal basis for digital AHV services, including online access to IC report and automated pension calculations. The technical implementation of these systems is now to take place in stages. The motion was adopted by the National Council in March 2024 and is now being discussed by the Council of States.