- The motion calls for a clear bill on the legal responsibility of internet providers in order to eliminate many years of legal uncertainty.
- The Federal Council considers the existing criminal and civil law regulations to be sufficient and sees no need for legislative action today.
- Instead, the federal government and cantons are focusing on concrete strategies to combat network crime and international cooperation.
Motion Riklin (09.4222): Legal responsibility of Internet providers
depreciated (23.12.2011)
Submitted text
The Federal Council is instructed to submit a bill to Parliament on the legal responsibility of Internet providers that eliminates the current legal uncertainty.
Justification
Clear legal rules benefit providers, customers, authorities, and also the judiciary. This has been recognized abroad (EU and USA), and the legal situation on the Internet has been clarified in good time, at least in the main features. In Switzerland, on the other hand, there is complete uncertainty and disorientation. For more than a decade, there has been a dispute about the legal responsibility of Internet providers. The only thing that has been clarified in this country is that the creators of illegal content (content providers) are legally responsible if they can be identified. It remains unclear, however, how far the responsibility of the other participants in the communication chain extends. This applies in particular to host providers who enable their customers to upload information to their web server. The general rules in Swiss criminal and civil law are not tailored to the online world. On their basis, it is possible to justify both a particularly sharp obligation on the part of providers and the opposite. Experts disagree, legal scholars contradict the authorities, and the courts (especially at the cantonal level) have trouble even distinguishing between the different types of providers. In the EU, it has long been recognized that different approaches in legislation and case law and the resulting legal uncertainty hinder the free movement of services. It is not understandable why Switzerland believes it can manage in isolation and without specific regulation in an internationally networked area such as online communications. The renunciation of clear rules is also questionable from the point of view of the rule of law. As early as 2001, the National Council and the Council of States demanded a legally secure regulation and adopted a corresponding motion by Pfisterer. The fact that special rules are needed for online accountability was also undisputed in the subsequent consultation on an amendment to the criminal code: All political parties and 21 cantons were in favor of a regulation that clarifies the legal situation, at least in criminal law. Nevertheless, the Federal Council is not prepared to act.
Statement of the Federal Council
It is true that neither criminal nor civil law contains any specific regulation regarding the responsibility of providers. However, this does not mean that there is legal uncertainty in Switzerland because of this.
With regard to the criminal liability of providers, the Federal Council, based on the report of the Commission of Experts on Network Crime, sent a preliminary draft amendment to the Criminal Code (StGB) and the Military Criminal Code (MStG) for consultation in December 2004. In principle, a majority of those consulted were in favor of an explicit regulation of the criminal liability of providers, including the number of 21 cantons mentioned by the author of the motion and all political parties. At the same time, however, the proposed regulation was judged very controversially in detail. Based on the results of the consultation, the Federal Council decided not to regulate criminal liability for the reasons explained in detail in its report of February 2008, in the conviction that appropriate solutions are possible on the basis of media criminal law (Art. 28ff. StGB/Art. 27ff. MStG) and the general principles on perpetration and participation (Art. 24ff. StGB/Art. 23ff. MStG). A better fight against network crime would not have been possible with the norms proposed in the preliminary draft, but neither would it have been possible with an amended draft that would have merely raised new questions of interpretation. To date, Swiss companies have not experienced any competitive or locational disadvantages. The fear that legal certainty could be impaired by contradictory rulings has also not been confirmed. Although the Federal Council has refrained from explicitly regulating criminal liability, it has at the same time taken important decisions for efficiently combating network crime. For example, it decided to build up resources for monitoring violent extremist websites at the intelligence service, to improve cooperation with the cantons and abroad in criminal prosecution, and to ratify the Council of Europe’s Cybercrime Convention.
With regard to the liability of providers under civil law, providers of Internet services are liable according to the same principles as providers of other services. According to the Code of Obligations (CO), they are liable for damages if they unlawfully cause damage to another, whether intentionally or through negligence (Art. 41 para. 1 CO). The Federal Council is still of the opinion that the legal framework has proven itself and is sufficiently legally secure. A special right for providers could hardly bring any advantages. In the best case, it would result in a codification of the existing doctrine and (sparse) practice. In the worst case, providers would be threatened with increased liability. However, this is neither in the interest of the providers nor in the interest of Switzerland as a business location.
The Federal Council had several opportunities to explain its strategy in the fight against network crime, for example when its report of February 2008 was noted by the Committees for Legal Affairs of the National Council and the Council of States; and once again in its responses to motions Büchler 07.3510, “Criminal steps against cybercrime,” and 07.3509, “Legal certainty for providers of Internet services.” The National Council approved the Federal Council’s strategy in the fight against network crime during the special session in June 2009 and rejected the motion Büchler 07.3510 by a clear majority. At the same time, it adopted Motion Burkhalter 08.3100, “National strategy to combat cybercrime”, as the second Council, and obliged the Federal Council to flesh out its strategy in cooperation with the cantons and the business community, particularly in the areas of espionage and data misuse. Motion Büchler 07.3509 was written off in June 2009 because it had been pending for more than two years.
Since negative consequences have not occurred under the current law, neither for the provider industry nor for law enforcement, a need for legislative action can also be negated from today’s perspective.