- The Federal Council wants to examine the handling of blocked addresses as part of the FADP revision, in particular quick and uncomplicated deletion mechanisms.
- Whether the publication of false or outdated data is a criminal offense depends on the individual case; civil law claims are possible under Art. 28a of the Swiss Civil Code.
- In the case of dissemination from private sources, violations of personality rights or criminal offenses are more likely to be assumed than in the case of public registers.
- There is no general ban on the publication of minors’ data; the protection of minors is being examined in depth in the revision of the FADP.
Question Comte (12.1084): Private credit agencies. What are the possibilities for action?
Submitted text
In its response to Motion Savary 12.3578, “Credit rating databases. A problem that must be solved,” the Federal Council refers to the upcoming revision of the Federal Data Protection Act (DPA) and recalls that private credit reporting agencies must comply with the DPA when processing data.
After prohibiting Moneyhouse from continuing to offer its “people search” service as part of a super-provisional measure, the Federal Administrative Court has allowed the company to collect information again, provided that the requests of affected individuals to delete their profile are complied with within 24 hours – and not within a few days or weeks. Apparently, however, the reality is different, and individuals who wish to delete information concerning them cannot do so easily, as certain of these companies act in bad faith in handling the request or even refuse to delete it on the grounds that it is public data.
I therefore put the following questions to the Federal Council:
1. is the Federal Council considering concrete measures to ensure that the persons concerned can actually delete their personal data – and do so in a straightforward manner and without being unjustly denied this?
2. does the Federal Council consider it possible that the publication of false or outdated data could constitute a criminal offense (defamation) or lead to a claim for damages (violation of personal rights)?
3. in some cases, data on minors is also published on these websites. Does the Federal Council not think that this practice should be banned immediately?
Answer of the Federal Council v. 14.11.2012
The Federal Data Protection and Information Commissioner (FDPIC) had requested the immediate blocking of the people search function of the Moneyhouse internet service after it had received numerous complaints from people who had blocked their address and felt that their life and limb were threatened because of the publication in this internet service due to their specific situation, but whose request for deletion was not dealt with by the FDPIC. In an interim ruling of August 6, 2012, the Federal Administrative Court decided that the publication of blocked address data was problematic under data protection law. To avoid disadvantages for the persons concerned, it was sufficient for the Internet service to comply with their deletion requests on the same day. For Edöb, on the other hand, the publication of blocked addresses on the Internet is unacceptable.
The Federal Council responds to the questions as follows:
1 The Federal Council will examine the handling of blocked addresses as part of the revision of the Federal Act on Data Protection, in particular with regard to the question of whether specific measures are to be taken to ensure that a request for deletion is also complied with in an uncomplicated and rapid and effective manner. The work in this regard has only just begun; he is therefore not yet in a position to comment on this question.
2. whether a criminal offense has been committed, namely an offense of defamation, always depends on the individual case. The same applies to the question of whether the publication of false or outdated data could lead to a claim for damages for violation of personality rights. Article 28a(3) of the Civil Code provides for the possibility of a claim for damages and satisfaction as well as for the surrender of a profit in the event of an unlawful violation of personality rights. In the case of dissemination of information from sources such as private websites or press sites, the existence of a criminal offense or unlawful infringement of personality rights tends to be more likely than in the case of dissemination of data from public registers (e.g. commercial registers, telephone directories).
3 At present, there is no legal basis to generally prohibit the publication of data of minors. An immediate ban is, however, possible in individual cases if this is necessary, for example, for reasons of personality protection. The protection of minors will be a particular concern of the Federal Council in the revision of the Federal Act on Data Protection. It will examine this aspect in greater depth.