In its response to the Rossini interpellation 13.1082 the Federal Council was of the opinion that the Photo traps not a problem from a data protection perspective and that the existing legislation would be sufficient. A few years later, it appears that the situation has evolved in the direction of former National Councilor Rossini’s fears. The number of traps set has literally exploded. According to the data protection commissioner of the canton of Valais, he has received numerous complaints. Walkers are being spied on by the owners of the traps. Criminal proceedings have been opened on charges based exclusively on the illegal evidence collected with these photo traps. A hunting warden joked with another person and said that she had seen them running on a suone. The information to discourage the population from stealing the cameras is absolutely deficient.
So it turns out that with these photo traps, which in practice become a network of surveillance cameras in nature, In violation of all data protection regulations, probably criminal offenses have been committed. In view of this situation, is the Federal Council prepared to revise its assessment from 2014, when it still considered the current legislation to be sufficient?
Is the Federal Council prepared to draw the attention of the cantonal offices and universities that set up these traps to their strict obligations under data protection law? What does the Federal Council intend to do to prevent the uncontrolled spread of photo traps? Would it not make sense to regulate the use of photo traps in the Hunting Act (JSG)?
Statement of the Federal Council from 16.02.2022
The Federal Council, in its answers to the question of the then National Councillor Rossini, has already 13.1082 “Photo traps and data protection” and to its questions. 14.5068 and 14.5069 “Phototraps. Application of Data Protection” states that data protection regulations must be complied with when using photo traps. The processing of personal data by private persons and federal bodies is governed by the Federal Data Protection Act (FADP, SR 235.1), while data processing by cantonal authorities (such as universities) is governed by the data protection legislation of the cantons. Personal data may only be processed for the purpose that was stated when the data was obtained, is evident from the circumstances or is provided for by law (for data protection legislation at the federal level, see Art. 4 para. 3 DSG). The purpose of photo traps is not to process personal data, but to monitor and record wildlife populations. Accordingly the photo traps are to be aligned in such a way that no persons are recognizable on the pictures. Any photos that nevertheless allow persons to be identified are to be immediately delete. Storing, forwarding or publishing photographs of persons or information obtained from them is prohibited. In addition, the unauthorized recording of other persons is punishable under certain conditions according to Article 179quater of the Swiss Penal Code (SR 311.0). In the cantons of Valais and Graubünden, the use of photo traps for hunting is prohibited (Art. 32 para. 7 Implementing Regulations to the Hunting Law of the Canton of Valais and Art. 6 Ordinance on Hunting in the Canton of Graubünden). Furthermore, the Canton of Zurich and the Swiss Hunting Association have published guidelines on the use of photo traps.
Whether in practice the use of photo traps violates data protection regulations and criminal law standards must be assessed on a case-by-case basis by the supervisory authorities and the courts. The FDPIC is responsible for supervising compliance with data protection law with regard to regulations at federal level, and the data protection authorities of the cantons with regard to regulations at cantonal level. Under the totally revised FADP, the FDPIC will open an investigation ex officio or upon notification if there are sufficient indications that a breach of data protection regulations has occurred. Furthermore, the FDPIC will be able to issue rulings, the disregard of which will be punishable by law if the corresponding threat is made. Photo traps commissioned by the federal government are signaled with signs naming the operator. The guidelines adopted by the canton of Zurich contain similar provisions for use by private individuals. Persons who suspect that they have been photographed can contact the person in charge and, based on the data protection legislation, request information about the data processing and the deletion or destruction of the corresponding photos. In addition, the persons concerned have the option of turning to the supervisory or judicial authorities. However, the increasingly frequent use of photo traps for hunting purposes is causing concern among the relevant authorities. This is not only due to data protection concerns, but also in particular with regard to the protection of wildlife, for which the federal government is responsible (cf. Art. 79 and 80 para. 1 of the Swiss Federal Constitution, SR 101). If animals are permanently monitored for their hunting by using photo traps as an aid, this can have a detrimental effect on the conservation of the animals concerned. The Federal Council will therefore examine at the next opportunity whether a regulation on the use of photo traps for hunting is necessary.