Postu­la­te Feri (15.3407): Pro­tec­tion of per­so­nal rights
Not yet dis­cus­sed in the Council.

Sub­mit­ted text

Recent­ly, a Judgment of the District Court of Lenz­burg in the mat­ter of “reven­ge porn on the Inter­net” and a fake Face­book pro­fi­le of the same peo­p­le invol­ved cau­sed a stir. It is time to fun­da­men­tal­ly exami­ne how exi­sting laws, such as tho­se on defa­ma­ti­on, could be trans­fer­red to the digi­tal space.

The­r­e­fo­re, I ask the Fede­ral Coun­cil to exami­ne the que­sti­ons below indi­vi­du­al­ly in a com­pre­hen­si­ve report for the are­as of pro­tec­tion of minors, per­so­nal rights, legal norms against dis­cri­mi­na­ti­on, anti-racism cri­mi­nal norm, data pro­tec­tion and data owner­ship, bans on inci­te­ment to vio­lence, inci­te­ment to hat­red, dis­tri­bu­ti­on of seve­re por­no­gra­phy, etc:

1. what are the various cri­mi­nal offen­ses on the Inter­net known to the aut­ho­ri­ties, how fre­quent are they, how has their occur­rence chan­ged sin­ce 2000, and how lar­ge is the esti­ma­ted num­ber of unre­por­ted cases?

2. what are the exi­sting legal rules that can be applied in each case – both cri­mi­nal and civil?

3. what are the inve­sti­ga­ti­on methods used on the inter­net today? What are the obs­ta­cles and how could they be remo­ved to enable pro­per investigation?

4. how is the increa­sed “impact” (mea­ning the “scope”) of the offen­ses – based on the exi­sting legal foun­da­ti­on – inclu­ded in their eva­lua­ti­on for the penal­ty today? This evaluation/punishment of cri­mi­nal offen­ses on the Inter­net is to be com­pared with tra­di­tio­nal “offen­ses”.

5. to pre­sent cri­ti­cal­ly – for each of the abo­ve-men­tio­ned are­as – what the pos­si­bi­li­ties and limits of an Inter­net-dri­ven revi­si­on of the abo­ve-men­tio­ned are­as might be and how they compa­re internationally.

State­ment of the Fede­ral Council

The Fede­ral Coun­cil is awa­re of the incre­a­sing importance of the digi­tal space and the asso­cia­ted pro­blems. For this rea­son, on Octo­ber 9, 2013, it adopted the Report “Legal Basis for Social Media for the atten­ti­on of par­lia­ment – in ful­fill­ment of the Amherd postu­la­te. 11.3912, “Legal Basis for Social Media”. This report alre­a­dy con­tai­ned a com­pre­hen­si­ve ana­ly­sis of Swiss law in rela­ti­on to social media. In par­ti­cu­lar, it also ana­ly­zed the legal situa­ti­on with regard to cyber­bul­ly­ing or cyber­bul­ly­ing, i.e. the dis­se­mi­na­ti­on of defa­ma­to­ry texts, images or films using modern means of com­mu­ni­ca­ti­on to defa­me, ridi­cu­le or harass indi­vi­du­als (cf. also the Fede­ral Council’s report on the “Pro­tec­tion of Cyber­bul­ly­ing” of May 26, 2010). The report con­clu­ded that the­re was curr­ent­ly no need to crea­te a spe­cial law on social media and that no major regu­la­to­ry gaps were appa­rent. The often gene­ral regu­la­ti­ons in exi­sting laws (e.g., Data Pro­tec­tion Act, Cri­mi­nal Code, Civil Code, Fede­ral Act against Unfair Com­pe­ti­ti­on), if applied pru­dent­ly, allow ade­qua­te respon­ses to most of the pro­blems that social plat­forms crea­te or could crea­te for indi­vi­du­al data sub­jects and the gene­ral public.

Howe­ver, the report also came to the con­clu­si­on that an impro­ve­ment in indi­vi­du­al are­as could not be ruled out through cer­tain legis­la­ti­ve adjust­ments. For this rea­son, a pos­si­ble need for legis­la­ti­ve action with regard to social media is being or has been cla­ri­fi­ed as part of the revi­si­on of the Data Pro­tec­tion Act, the Youth and Media Pro­gram and the revi­si­on of the Tele­com­mu­ni­ca­ti­ons Act. The FDJP was also ins­truc­ted to exami­ne the civil lia­bi­li­ty of plat­form ope­ra­tors and pro­vi­ders and, if neces­sa­ry, to prepa­re a cor­re­spon­ding con­sul­ta­ti­on draft. By the end of 2016 – as soon as the afo­re­men­tio­ned work has been com­ple­ted or its direc­tion is cle­ar­ly dis­cer­ni­ble – the Fede­ral Coun­cil will car­ry out a rene­wed assess­ment of the situa­ti­on with regard to social media.

The com­pre­hen­si­ve cla­ri­fi­ca­ti­on sug­ge­sted by the postu­lant has the­r­e­fo­re alre­a­dy been car­ri­ed out or initia­ted. In the view of the Fede­ral Coun­cil, a fur­ther report on this is not neces­sa­ry at present.

Moreo­ver, it has alre­a­dy been reco­gnized that law enforce­ment on the Inter­net is made more dif­fi­cult by new tech­ni­cal pos­si­bi­li­ties. In its draft revi­si­on of the Fede­ral Act on the Sur­veil­lan­ce of Postal and Tele­com­mu­ni­ca­ti­ons Traf­fic, the Fede­ral Coun­cil has the­r­e­fo­re pro­po­sed crea­ting a legal basis for the use of spe­cial IT pro­grams (govern­ment soft­ware, or Gov­wa­re for short), which can also be used to moni­tor encrypt­ed tele­com­mu­ni­ca­ti­ons traf­fic (e.g. e‑mails or Inter­net tele­pho­ny). Fur­ther­mo­re, the Fede­ral Coun­cil is also pur­suing this stra­tegy at the trea­ty level. On Janu­ary 1, 2012, the Coun­cil of Euro­pe Con­ven­ti­on on Cyber­crime ente­red into force for Switzerland.

The Fede­ral Coun­cil will con­ti­n­ue to ensu­re that it addres­ses this fun­da­men­tal issue time and again in the future and – whe­re appro­pria­te – will also pro­po­se new or adapt­ed legal provisions.