Submitted text
Is put the following questions to the Federal Council:
- What legal sanctions have been imposed to date in Switzerland against multinational Internet companies based abroad, such as Google, Facebook, Apple, Twitter, Yahoo, Amazon, Uber or AirBnB?
- Were these decisions accepted by the companies concerned?
- Are Switzerland’s current legal instruments sufficient to have a deterrent effect on these companies, which are very heavily capitalized, make enormous profits and have a great deal of liquid assets? If not, what does the Federal Council intend to do?
- In particular, have Swiss courts imposed sanctions based on Article 292 SCC against multinational Internet companies?
- Does the Federal Council believe that the maximum amount provided for a fine under Article 292 SCC can have a deterrent effect on companies such as those referred to in question 3? If not, what does the Federal Council intend to do?
- In particular, have precautionary measures been imposed against multinational Internet companies? If yes: Were these respected?
- Does the Federal Council believe that the instrument of precautionary measures has a sufficiently deterrent effect on multinational Internet companies such as those referred to in question 3? If not, what does the Federal Council intend to do?
- How does the Federal Council assess the risk that large companies operating on the Internet will violate Swiss law without fearing any consequences because they are based abroad and because the sanctions that our law currently has at its disposal cannot have a sufficiently deterrent effect on these companies given their financial circumstances?
- Does the Federal Council plan to strengthen sanctions against violations of the law on the Internet in the direction currently being taken by Germany, particularly with regard to punishing hate comments on the Internet?
Justification
Cases of flagrant violation of Swiss law by Internet giants based abroad are increasing. Often, these companies have such large financial resources that the sanctions provided by current Swiss law for violations of the law or disregard of official orders do not have the slightest deterrent effect. However, the Internet must be prevented from becoming – or, worse, remaining – a lawless space where impunity reigns for some very large and powerful players.
Statement of the Federal Council
The novel issues and the associated legal challenges that arise in connection with services on the Internet are not primarily of a criminal law nature, but concern civil law and administrative law issues to at least the same extent. For example, the well-known “Google Street View” case (BGE 138 II 346) is a question of data protection law.
It is often not clear from the outset how new phenomena on the Internet are to be regulated or to what extent existing rules from the analog world should also apply to new digital services. These points must be clarified before questions arise about the enforcement or sanctioning of errant behavior.
Questions 1 and 2
The Federal Council has no comprehensive information on legal proceedings, interventions or measures against the companies mentioned, nor on the question of the acceptance of any decisions. However, virtually all of these companies have already been the subject of or party to legal proceedings in Switzerland, including those before the Federal Supreme Court.
Based on the experience – which is not based on systematically collected information kIn the view of the Federal Council, it cannot be said that the companies mentioned by the interpellant generally do not comply with the rules applicable in Switzerland and would not accept decisions.. For example, the data contained in the “Google Street View” ruling (BGE 138 II 346) have been implemented – as far as can be seen.
Question 3
According to current knowledge, practical difficulties in enforcing the law are not primarily a problem of the level of sanctions or the lack of deterrence. Since services on the Internet are often cross-border in nature, there is a lack of deterrence in the application of the Principle of territoriality often a starting point for regulating or punishing certain phenomena under national law. Another complicating factor is that the Swiss authorities can only gain access to data stored abroad, to which the actors operating in Switzerland do not have direct access, by means of mutual legal assistance (BGE 141 IV 108; BGE 143 IV 21).
Questions 4 and 5
The Federal Council is not aware whether injunctions under Article 292 SCC have played a special role in proceedings against multinational Internet companies.
Disobedience of an official order (Art. 292 StGB) is a misdemeanor (fine up to CHF 10’000. – ). The penal provision is directed at natural persons, not at companies. If the order is directed at a company, the punishability mainly concerns persons from the management (Art. 29 StGB). Because the threat of punishment appears to be too low in some cases, certain administrative laws contain penal provisions with a higher threat of punishment (e.g. Art. 48 of the Financial Market Supervision Act). As already explained in the answer to question 3, however, the difficulties in the legal regulation of Internet services are not primarily due to sanctions being too low or having too little deterrent effect.
Questions 6 and 7
Precautionary measures are primarily intended to maintain or restore an existing situation and prevent the creation of a fait accompli to the detriment of one party during ongoing proceedings. Under civil law, such measures can also be ordered in Switzerland against multinational Internet companies, provided that the Swiss courts have jurisdiction. This is the case if they have jurisdiction over the main action or if the measure is to be enforced in Switzerland. The enforceability of measures abroad depends on state treaty or foreign law (cf. Federal Council Report “Die zivilrechtliche Verantwortlichkeit von Providern” of 11 December 2015, para. 6.2.5).
The Federal Council is not aware that – insofar as Swiss courts were competent – multinational Internet companies regularly failed to comply with precautionary measures taken.
Question 8 and 9
In principle, there is a risk that internationally active Internet companies may not be covered by Swiss law at certain points. Where this occurs, however, it is generally not a consequence of too few sanctions, but rather due to the fact that, due to the Principle of territoriality Swiss law is not applicable or cannot be enforced.
The Federal Council is closely following developments on the Internet and has already commented on the resulting legal challenges on several occasions (Legal Basis for Social Media, Federal Council Report of October 9, 2013 in fulfillment of Postulate Amherd 11.3912; Legal Basis for Social Media: Renewed assessment of the current situation. Follow-up report of the Federal Council of May 10, 2017 to the postulate report Amherd 11.3912 “Legal basis for social media”; report of the Federal Council “The civil liability of providers” of December 11, 2015). In doing so, it is looking for expedient solutions, but refrains from proposing the enactment of laws that cannot even be enforced for lack of jurisdiction. At the same time, it proposes selective legal amendments that also regulate issues relating to the Internet. For example, he will soon be presenting a dispatch on a revision of the Data Protection Act. This will also address the question of what sanctions are adequate in the event of a violation of the relevant rules.