SLK: Deci­si­on No. 172/20 on the ban on spam

The Swiss Com­mis­si­on for Fair­ness SLK has been in the Deci­si­on No. 172/20 dealt with the que­sti­on of when the sen­ding of elec­tro­nic adver­ti­sing messages is “mass” (wit­hin the mea­ning of Art. 3 para. 1 lit. o UCA). In doing so, it sta­ted that it is not the num­ber of e‑mails sent (“quan­ti­ta­ti­ve approach”), but the auto­ma­ti­on of the sen­ding (“qua­li­ta­ti­ve approach”) that is important:

The dis­patch on the revi­si­on of the Tele­com­mu­ni­ca­ti­ons Act TCA, in the con­text of which the pre­sent UCA pro­vi­si­on was also enac­ted, descri­bes the term “mass adver­ti­sing” as fol­lows […]: “Mass adver­ti­sing is cir­cum­scri­bed as adver­ti­sing which is auto­ma­ted, i.e. without signi­fi­cant human effort”. This “qua­li­ta­ti­ve approach”, which has also been wide­ly adop­ted in the doc­tri­ne, thus ties in with the Ship­ping pro­cess of the adver­ti­sing mes­sa­ge to […]. Howe­ver, neit­her the wor­d­ing of the law, the pur­po­se of the pro­vi­si­on nor the mate­ri­als indi­ca­te that the term “mass adver­ti­sing” is lin­ked to any human effort in collec­ting the recipient’s addres­ses. The auto­ma­ti­on of sub­se­quent ship­ping alo­ne is decisi­ve. Accord­in­gly, the one-time auto­ma­ted dis­patch of an small num­ber of e‑mails, but not the sen­ding of e‑mails that is done “by hand” […]. […] In this sen­se, the ele­ment of “mass adver­ti­sing” is ful­fil­led, con­tra­ry to the con­si­de­ra­ti­ons of the cited dis­con­ti­nua­tion order of the cri­mi­nal inve­sti­ga­ti­on aut­ho­ri­ties. Based on the design of the two e‑mail adver­ti­se­ments at hand, it is credi­ble that the sen­ding was auto­ma­ted (e.g. imper­so­nal address com­bi­ned with gene­ral, imper­so­nal con­tent and messages).