IT Law in the winter session 2023

In the winter session 2023, the Parliament will again deal with various IT law topics.

IT Law topics in the National Council:

Motion: VAT obligation for online platforms for electronic services?This motion instructs the Federal Council to submit an amendment to the Federal Act on Value-Added Tax to Parliament so that platform taxation applies to electronic services. To date, platforms that provide services (in particular, downloading and streaming of software, apps, films, and music) have only been subject to an obligation to disclose information. This motion intends to change this; it is not the provider who should pay tax on these electronic services, but the platform through which they are provided. The Federal Council proposes that the motion be adopted.
Parliamentary initiative: Employees in start-ups with shareholder participation plans should be exempt from recording their working hours. The relevant articles of the Labour Act (ArG), in particular Article 46, are to be amended to the effect 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 their working hours. Employees of start-ups in possession of Esop should not have to record their working hours (ArGV 1 Art. 9). 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. Yet, an adjustment to the current reality is welcomed, even if the waiver would still only be possible under narrowly defined rules, and only start-ups can benefit from this; it is a step in the right direction. The National Council has extended the deadline until the 2024 autumn session.
Revision of the Federal Act on the Electronic Patient Record (EPDG):?The Federal Council wants to develop the electronic patient record (EPR) further and promote its dissemination. This requires a comprehensive revision of the law. To ensure that funding for the EPR can be secured until it comes into force, the Federal Council has decided on transitional funding and submitted the corresponding dispatch to Parliament. This bill is expected to come into force at the end of 2024. The electronic patient record is an important healthcare tool. With the EPR, Switzerland has a standardized, trustworthy platform for the exchange of important health information for the first time. All treatment-relevant information can be stored digitally in one place and accessed at any time by authorized persons. The comprehensive revision of the law, which was submitted for consultation in June 2023, aims to clarify the division of responsibilities between the Confederation and the cantons and the financing of the EPR, among other things. In future, the Confederation is to coordinate and finance the further development of the EPR. The cantons are to ensure the existence of at least one core community on their territory and assume financial responsibility for the operation of these core communities.
Introduction of a simplified procedure for the destruction of small consignments under intellectual property law.?Counterfeit products that enter Switzerland in small consignments should be easier to destroy thanks to a new procedure. On April 26, 2023, the Federal Council took note of the results of the consultation and adopted the statement and the draft Federal Act on the Introduction of a Simplified Procedure for the Destruction of Small Consignments under Intellectual Property Law.
Motion: Creation of a constitutional basis for federal regulation of national police data exchange.?This motion requests the Federal Council to submit a revision of the Federal Constitution to Parliament, granting the Confederation the authority to regulate the retrieval of police data among the cantons and between the Confederation and the cantons. In December 2019, a motion was passed instructing the Federal Council to create a national police database or networking platform (PO-LAP). This platform should enable cantonal police databases to query and network police data on persons and incidents in Switzerland directly. The federal government already has the necessary legal basis, but many cantons still need to. It is therefore proposed that a new federal competence be created in the constitution to regulate the retrieval of police data between the cantons and the Confederation via PO-LAP and to ensure the implementation of the motion.
Election of the Federal Data Protection and Information Commissioner (FDPIC) for the 2024-2027 term of office.?The United Federal Assembly will elect the Federal Data Protection and Information Commissioner for the first time in December. The Judiciary Committee is proposing that Adrien Lobsiger be confirmed in office.
Parliamentary initiative: Ultimately, make cybergrooming involving minors a criminal offense. This parliamentary initiative aims to criminalize cybergrooming and make it an offense. Cybergrooming refers to the deliberate initiation of sexual contact between adults and minors on the internet. The National Council and Council of States legal committees approved the initiative in 2019. The first draft is now assigned to the committee dealing with it.?

IT law topics in the Council of States

Motion: Increase the minimum Internet speed in the basic services to 80 megabits per second. In this motion, the Federal Council is requested to modify the basic broadband internet access in the Telecommunications Services Ordinance (TSO) to at least 80 megabits per second. Since corona, there has been a significant increase in home office and homeschooling. While the internet supply in the cities was sufficient, many families and companies in rural regions and agglomerations suffered from a lack of internet speed. The Telecommunications Services Ordinance (TSO) stipulates a basic service speed of 10 Mbit/s starting January 2020 According to the motion, this is far from meeting current technical possibilities and demand. The increase in the nationwide minimum speed to 80 Mbit/s is, therefore, more than justified. This adjustment must be made as soon as possible, given the invitation to tender for the next universal service concession starting on January 1, 2023.
Motion: Enabling research in bank client archives. The Federal Council is instructed to enable research in bank client archives. To this end, the Banking Act (BankA) shall be amended to the effect that Art. 47 BankA allows banks to grant researchers access to their bank client archives for scientific purposes. However, Swiss banks refuse to give researchers access to their archives concerning Art. 47 BankA. It is mainly due to the banks’ understandable desire to protect their employees from a possible violation of Art. 47 of the Banking Act when handing over customer data to researchers. The amendment to the law is intended to enable local banks to grant researchers access to their archives for scientific purposes, if necessary, subject to conditions and an appropriate protection period.
Postulate: Handling the further use of illegally acquired data. The submitted postulate instructs the Federal Council to produce a report showing how to improve the legal protection of sensitive personal data against the publication of such data by social and private media and, simultaneously, how to uphold the legitimate public interest to stop systematic law violations. It should be examined whether the publication of unlawfully collected data should be made a criminal offense (similar to a ban on data fencing). Journalists already fear that this could restrict their work and, ultimately, the freedom of the press.