Interpellation Stöckli (12.4202): Swisscom. Dealing with copyright-protected content
Done (19.03.2013)
Submitted text
The Federal Council is instructed to comment on the following questions, also against the background of its role as the authority responsible for defining the ownership strategy of the Confederation as the majority shareholder of Swisscom:
1) How does it view the fact that Swisscom, as an Internet service provider, tolerates the fact that its subscribers are offered copyright-protected content for download or streaming from various illegally operating platforms without authorization from the rights holders? How can Swisscom and other access providers be held accountable in this regard?
2. how does it assess – with regard to combating such platforms – the experience of the Federal Office of Police and the Coordination Unit for Combating Internet Crime (Kobik), which has now been gathered over several years and which has developed an apparently effective set of instruments for various offences (including racism, child pornography)?
3. how does it view the fact that Swisscom (or organizations commissioned by it) is placing advertisements for Swisscom products and services on such platforms?
Justification
The Confederation is the majority shareholder of Swisscom and, as part of its “Strategic objectives of the Confederation for its participation in Swisscom Ltd. 2010 – 2013”, has defined an ownership strategy which requires, among other things, that Swisscom “sustainably secures and increases the value of the company”, “has appropriate risk management in place” and “pursues a sustainable corporate strategy committed to ethical principles”. This implies that Swisscom proactively identifies and combats avertable risks to its corporate reputation in order to protect shareholder interests.
Obviously, Swisscom subscribers also have access today to Internet platforms which typically do not regulate copyrights and ancillary copyrights for the content to which they provide access, but which generate profits, e.g. through advertising or subscription revenues (also switched by Swisscom or organizations commissioned by it). Indirectly, the rights holders (artists, producers, distributors, etc.) incur very large revenue losses from these business practices – including Swisscom itself as a content provider.
Kobik already prepares suspicious activity files for various criminal offenses and forwards them to the cantonal prosecution authorities, and often reports them directly to Internet service providers and website operators for deletion (according to Kobik’s 2011 annual report). Obviously, the technical and legal possibilities exist to block corresponding offers.
Against this background, it is necessary for Swisscom to do everything in its power to clearly and comprehensibly distance itself from such illegal machinations and to protect its subscribers and its own offering from them.
Statement of the Federal Council
1. the working group set up by the Head of the Federal Department of Justice and Police to optimize the collective exploitation of copyrights and related rights (“Agur 12”; https://www.ige.ch/de/urheberrecht/agur12.html) is concerned, among other things, with the question of the extent to which an obligation on Internet access providers such as Swisscom to take active measures to protect copyrights would be compatible with the constitutionally protected right to privacy (Art. 13 of the Federal Constitution), telecommunications secrecy (Art. 43 TCA, Art. 321ter StGB), data protection and the right to freedom of expression. Results are expected by the end of 2013. It is questionable whether access providers would even be able to perform content triage in view of the abundance of websites. For this reason, a new Article 24a was inserted on the occasion of the partial revision of the Copyright Act, which limits the liability of access providers vis-à-vis the owners of copyrights and related rights in the interest of efficient use of modern communication systems.
With regard to the dissemination of illegal, in particular pornographic, racist, discriminatory, offensive or excessively violent content on the Internet, the Federal Council has repeatedly stated – most recently in its response to Motion Riklin 09.4222 – that the existing criminal and civil law provides a sufficient basis for combating this and that tightening the liability of access providers would not be in the interests of Switzerland as a business location.
Swisscom does not tolerate illegal practices on the Internet and will take all measures within its means to prevent the dissemination of content relevant to criminal law if ordered to do so by a court or the authorities.
2. the national coordination unit for combating cybercrime (Kobik) actively searches the Internet for content relevant to criminal law and receives suspicious activity reports from Germany and abroad. It examines their relevance in terms of criminal law and forwards relevant cases to the prosecution authorities in Switzerland and abroad. The vast majority of reports in 2011 concerned hardcore pornography as defined in Article 197 StGB. Copyright infringements were also reported, but accounted for only 0.75 percent of all tips. Due to its limited resources, Kobik is forced to focus on content. These lie in particular in combating hardcore pornography and pedocrime on the Internet, economic crimes and cybercrime in the narrower sense. The Kobik model has largely proved its worth in these areas. For an assessment of whether the Kobik model would be suitable as a possible model for combating copyright infringements, the results of the clarifications of the “Agur 12” working group must be awaited.
3 Swisscom is aware of the sensitivity of the issue. In accordance with its guidelines, which are also passed on to agencies commissioned by it, Swisscom refrains from advertising on questionable or controversial websites. However, in view of the abundance of offers on the Internet, it can never be completely ruled out that – exceptionally and unintentionally – an advertisement is placed on such a website. If such a case is detected or reported, Swisscom will immediately arrange for the deletion of the advertising. The Federal Council sees no need to issue specific guidelines on advertising practice as part of its strategic objectives for Swisscom.