Motion Schwaab (13.3052): Right to file a class action in the event of data protection violations, especially on the Internet
Written off (20.03.2015)
Submitted text
The Federal Council is instructed to prepare the preliminary draft for a legal basis providing for the possibility of collective action in civil law in the area of data protection, in particular on the internet and social networks. Access to collective redress should be facilitated, especially since the small amounts involved discourage aggrieved persons from filing a lawsuit, even if it were filed jointly. However, care must be taken not to adopt the shortcomings of “class action” in U.S. law.
Justification
In the revision of the Code of Civil Procedure, the legislator expressly rejected the introduction of class actions, pointing in particular to the shortcomings of the American “class action,” but also to the possibilities of litigation cooperatives or the strengthening of representative actions. In our view, this decision is inappropriate for data protection, especially on the Internet and in social networks. These areas have since undergone a development that is as rapid as it is significant. The new electronic media have indeed made it easier to collect and process personal data on a large scale. The risk of a data protection breach has increased significantly. While these breaches can involve significant personality violations and are difficult to prevent, they usually cause only minor financial damage, which discourages victims from suing. Furthermore, there is a lack of organizations with sufficient technical and financial resources to file a representative action. Therefore, it seems necessary to us to reconsider the introduction of “class action” in the Code of Civil Procedure for data protection concerns. If access to the courts were made easier for victims of large-scale data protection violations on the Internet – which could indisputably be achieved with the class action – the deterrent effect would undoubtedly be considerable. Invasions of privacy, which would increase if nothing were done, would thus certainly be curtailed.
However, it is not necessary to adopt an instrument such as the American “class action” for this purpose. Although this is effective, it has shortcomings. The EU is currently discussing the introduction of collective redress (see European Parliament resolution of February 2, 2012 P7_TA (2012) 0021).
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h1>Statement of the Federal Council
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The Federal Council is aware of the data protection problems posed by today’s technologies – including the internet and social networks. It also does not rule out the possibility that the strengthening of existing collective redress procedures or the introduction of new procedures may be useful or even necessary. In his opinion, however, it is still too early to comment on this issue; this is because the Federal Council is currently already conducting a broad and in-depth examination of the possibilities and instruments for collective redress, namely in the area of personality protection, which includes data protection in the private sector (Federal Council Opinion on Motion Birrer-Heimo 11.3977, “Facilitating redress in collective proceedings”). Furthermore, the issue of strengthening collective redress will be examined as part of the work on the ongoing revision of the Federal Data Protection Act (Federal Council report of 9 December 2011 on the evaluation of the Federal Data Protection Act; BBl 2012 335, here 349 – 350).
The Federal Council therefore proposes that the motion be rejected. Should the motion be accepted by the first Council, the Federal Council reserves the right to propose an amendment in the second Council.