Submitted text
The ownership of computer data is not regulated under Swiss law. If a hosting provider goes bankrupt, the computer data it manages falls into the bankruptcy estate. Their owners cannot reclaim them because, according to the established case law of the Federal Supreme Court, this is only possible for tangible goods in bankruptcy proceedings. Given the growth that the cloud computing industry is experiencing in our country, sooner or later there will be a bankruptcy of a hosting provider. It is certainly in the interest of this industry that the state has a duty to support and ensure data security even when hosting providers are in a difficult economic situation.
I therefore ask the Federal Council to answer the following questions:
1. does the Federal Council consider it necessary to amend Article 242 of the Federal Debt Collection and Bankruptcy Act (or the other relevant provisions) so that, in the event of the bankruptcy of a hosting provider, computer data which is part of the bankruptcy estate but which “belongs” to third parties can be claimed by them?
2. does he agree that effective data protection is a competitive advantage for the Swiss cloud computing industry?
3. is it generally of the opinion that Swiss law satisfactorily regulates the question of “ownership” of computer data?
4. if not, does it intend to give further consideration to reform on the “ownership” of data?
Answer of the Federal Council v. 12.12.2014
1 Under current law, there is no ownership of data under civil law. For this reason, segregation in bankruptcy based on Article 242 of the Federal Debt Collection and Bankruptcy Act (SchKG, SR 281.1) is not possible. If personal data is involved, the data subject is protected by the provisions of the Federal Act on Data Protection (Data Protection Act, DPA, SR 235.1). This law protects the persons concerned against unlawful processing of their personal data. As part of the ongoing work with regard to a possible revision of the Data Protection Act, the Federal Department of Justice and Police (FDJP) is examining whether the current level of protection under the Act is still sufficient.
Moreover, the introduction of a special rule for the case of bankruptcy does not seem appropriate: With the opening of bankruptcy proceedings against the original owner of a data collection, the possibility arises that the ownership of the data is transferred to a third party. However, this can also happen outside of bankruptcy proceedings, for example on the occasion of the sale of a business or the data collection, but also in the context of an inheritance.
2 The Federal Council believes that effective data protection, combined with Switzerland’s reputation as a reliable and stable country, can actually give a competitive advantage to Swiss companies working in the field of the information society. This is particularly true in the area of data storage, where trust is of paramount importance.
3 / 4 On the occasion of the current revision of the FADP, the question is also being examined whether, in deviation from the current legal situation, an actual “ownership of personal data” should be introduced. The FDJP will soon submit proposals to the Federal Council on how to proceed. In contrast, a broad reflection on an ownership of data in general is not planned.