Therefore, the opt-out system (which so far has been popular in Switzerland) will not
be accepted anymore since a voluntary consent can only be given by actively
checking a box.
3.1 Utilizing a Sub-Processor
Under the draft FDPA the prior consent of the controller is required. How whether
this position will be maintained remains to be seen in the final version of the law. For
efficiency purposes a general authorization such as the one allowed under the GDPR
should be made possible. Currently there is no such requirement for any form of
authorization for sub-processing under the FDPA. In light of the complexities of
cloud businesses and other multi-layered business arrangements in which the identity of the business partners is a key asset not requiring the disclosure is a key
advantage. Nevertheless, in order to meet the data protection requirements enforceable rights should be granted and the liability should rest on the processor
subcontracting with the other party as this is the case under the GDPR.
3.2 Marketing, Television and Radio
Generally, any entity handling data is subject to the FDPA, however, institutions
such as the Swiss public television and radio network might also be subject to further
laws due to the public service they offer. Swiss public radio and TV for example, are
also subject to the federal law on radio and television “RTVG” (Bundesgesetz über
das Radio und Fernsehen) as this special code governs public radio and TV stations
in general. Importantly, this law currently does address some topics related to data
protection, but mostly refers to the Data Protection Code.
Democratic values and thus, the Swiss Constitution regard any means of telecommunication and digital communication as private and therefore the data as
worthy of protection. This is set out in the Constitution under Article 13, the right
to privacy. However, in Switzerland the law on marketing cookies is much less
stringent as this is the case in the EU with the E-Privacy Directive.
17
17 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning
the processing of personal data and the protection of privacy in the electronic communications
sector (Directive on privacy and electronic communications), OJL 201, 31/07/2002 pp. 37–47,
https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri¼CELEX:32002L0058:EN:HTML.
406
D. N. Staiger
be accepted anymore since a voluntary consent can only be given by actively
checking a box.
3.1 Utilizing a Sub-Processor
Under the draft FDPA the prior consent of the controller is required. How whether
this position will be maintained remains to be seen in the final version of the law. For
efficiency purposes a general authorization such as the one allowed under the GDPR
should be made possible. Currently there is no such requirement for any form of
authorization for sub-processing under the FDPA. In light of the complexities of
cloud businesses and other multi-layered business arrangements in which the identity of the business partners is a key asset not requiring the disclosure is a key
advantage. Nevertheless, in order to meet the data protection requirements enforceable rights should be granted and the liability should rest on the processor
subcontracting with the other party as this is the case under the GDPR.
3.2 Marketing, Television and Radio
Generally, any entity handling data is subject to the FDPA, however, institutions
such as the Swiss public television and radio network might also be subject to further
laws due to the public service they offer. Swiss public radio and TV for example, are
also subject to the federal law on radio and television “RTVG” (Bundesgesetz über
das Radio und Fernsehen) as this special code governs public radio and TV stations
in general. Importantly, this law currently does address some topics related to data
protection, but mostly refers to the Data Protection Code.
Democratic values and thus, the Swiss Constitution regard any means of telecommunication and digital communication as private and therefore the data as
worthy of protection. This is set out in the Constitution under Article 13, the right
to privacy. However, in Switzerland the law on marketing cookies is much less
stringent as this is the case in the EU with the E-Privacy Directive.
17
17 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning
the processing of personal data and the protection of privacy in the electronic communications
sector (Directive on privacy and electronic communications), OJL 201, 31/07/2002 pp. 37–47,
https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri¼CELEX:32002L0058:EN:HTML.
406
D. N. Staiger