- Motion calls for clear legal rules on the civil and criminal liability of Internet providers (access, hosting, content).
- The Federal Council refers to ongoing work and wants to wait for the results before intervening legislatively.
- EU regulations (e‑commerce, copyright enforcement) provide models, but do not automatically create more legal certainty.
- Federal Council considers current criminal and civil law to be fundamentally sufficient at present, but is examining possible need for action in civil law.
Motion Riklin (13.3215): Regulating the legal responsibility of Internet providers
Transcript (03÷20÷2015).
Submitted text
The Federal Council is instructed to submit a bill to parliament that regulates the legal responsibility of Internet providers (content, hosting and access) and facilitates the civil and criminal prosecution of legal violations committed with the help of the Internet.
Justification
It proved fatal that the Federal Council refrained in 2008 from legally regulating the responsibility of Internet service providers (ISPs) in the event of unlawful use of their infrastructures. Providers, customers, authorities, but also the judiciary benefit from clear legal rules. The EU and other industrialized countries have long since done so. In Switzerland, uncertainty and lack of direction still prevail. The Federal Court has repeatedly called on the legislature to take action (Federal Court Annual Report 2010, ruling 5A_792/2011 of January 14, 2013).
The only thing that has been clarified in this country is that the creators of illegal content (content providers) are legally responsible; however, they are very difficult to identify and can therefore hardly ever be held accountable in court. It is unclear how far the responsibility of the other participants in the communication chain extends.
The e‑commerce directive has been in force in the EU for more than twelve years, which exempts host providers from liability at least to the extent that they have no knowledge of illegal content or take immediate action after receiving clear notices. Furthermore, the EU has regulated the liability of ISPs in the area of copyright and given rights holders claims against intermediaries (ISPs) whose services are used by third parties to infringe copyright (Art. 8.3 of the Copyright Directive), as well as a civil right to information (Art. 8 of the Enforcement Directive).
Under current law, ISPs can only be held criminally liable for aiding and abetting a primary offense and thus be induced to take measures against individual infringements, which does not do justice to the actual problem. Rather, it is often a matter of the infringers evading responsibility, either by choosing an exotic location or by hiding themselves technically. The construction of “aider and abettor liability” is unsuitable because it requires intent on the part of the ISP, which will usually not be the case.
Statement of the Federal Council
It is undisputed that providers, customers, authorities, but also the judiciary benefit from clear legal rules. However, any conceivable bill on the responsibility of Internet providers (access, hosting and content) and on the prosecution of infringements on the Internet faces the challenge of finding a solution that meets as many demands as possible, given the large number of players and their different needs and problems. There is not only the danger of overregulation, but also the danger of underregulation. Whether, for example, the EU directives mentioned by the mover of the motion have actually created the desired legal certainty – especially in comparison with the legal situation in Switzerland – remains to be investigated.
The Federal Council has repeatedly stated that current criminal and civil law is sufficient to cover the liability of providers (cf. Motion Riklin Kathy 09.4222, “Legal responsibility of Internet providers”., parliamentary initiative Hochreutener 08.418, “More legal certainty in network crime,” and most recently Interpellation Stöckli 12.4202, “Swisscom. Dealing with copyright-protected content”.). However, as the ruling of the Federal Court of January 14, 2013 (5A_792/2011) shows, there may well be a need for legislative action under civil law. The Federal Council has pointed out this possibility in the follow-up to this judgment (cf. question Glättli 13.5059, “Liability of hosting providers, blog and forum operators”). At present, various works on the relevant issues are already underway, the results of which should not be anticipated: First, the working group on optimizing the collective exploitation of copyrights and related rights (“Agur 12”; https://www.ige.ch/urheberrecht/agur12.html) should be mentioned. Second, a report by the Federal Council in fulfillment of Postulate Amherd 11.3912, “Legal Basis for Social Media,” is in progress, in which the legal situation with respect to social media will be presented and analyzed. It is planned that the Federal Council will present this report to Parliament before the end of the year.
On the basis of this work and ongoing developments in Switzerland and abroad, the Federal Council will examine whether there is actually a need for legislative action in civil law. The motion, on the other hand, would anticipate the results of the ongoing work.
With regard to criminal law, on the other hand, it should be noted that neither the actual nor the legal situation has changed in this area. The Federal Council’s comments of February 2013 on the above-mentioned Stöckli interpellation are therefore still valid: the existing criminal law instruments prove to be sufficient.