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).