I. History of origin

A. Right to privacy (Art. 13 para. 1 FC)

1 The Federal Constitution has only since 1999 contained an explicit guarantee of the right to privacy as a fundamental right, which is enshrined in Art. 13 FC under the title “Protection of Privacy”. Art. 13 para. 1 FC protects – with almost identical wording to Art. 8 para. 1 ECHR – private and family life, home, and correspondence. By contrast, the Federal Constitution of September 12, 1848 (FC 1848) and the Federal Constitution of May 29, 1874 (FC 1874) did not contain a general, integral guarantee of privacy, but only protected certain aspects of privacy. For example, the FC of 1848 protected the confidentiality of communications to a certain extent by stating the inviolability of postal secrecy in Art. 33 para. 3. Postal secrecy was then extended in the FC of 1874 to include telegraph secrecy (Art. 36 para. 4). Numerous cantonal constitutions also enshrined an essential aspect of privacy with the inviolability of the home from 1830. Accordingly, individual aspects of privacy were already guaranteed under constitutional law at both the federal and cantonal level before 1999.

2 Until the creation of Article 13 FC, the constitutional protection of privacy in Switzerland was guaranteed in particular by personal freedom, which was recognized by the Federal Court in 1963 as an unwritten fundamental right. In the following years, the Federal Court extended the scope of protection of personal freedom to include mental integrity (1964) and fundamental aspects of personal development (1971). This supreme court case law on personal freedom was significantly influenced by the ECHR and the case law of the European Court of Human Rights (ECtHR). Accordingly, the decisive impetus for the protection of privacy as a fundamental right in Switzerland came – and comes – from the ECHR and the case law on the Convention relating to Art. 8 para. 1 ECHR. The Federal Supreme Court therefore strives for a harmonized interpretation of Art. 13 para. 1 FC and Art. 8 para. 1 ECHR.

B. Fundamental right to data protection (Art. 13 para. 2 FC)

3 Art. 13 para. 2 FC protects every person against the misuse of their personal data. Before 1999, the fundamental right to data protection was not explicitly enshrined in the Federal Constitution, unlike certain cantonal constitutions. However, the Federal Supreme Court already recognized data protection rights under the Federal Constitution of 1874, e.g. a right of access and rectification for private individuals with regard to data concerning them that has been registered by an authority.

4 Swiss data protection law has been and continues to be significantly influenced by international and European data protection law. The protection of personal data is also guaranteed in international treaties that are binding on Switzerland. Particularly worthy of mention in this regard are Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and Article 8 of the ECHR. In addition, the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (the “European Data Protection Convention”, DSK) has provided a decisive impetus for Swiss data protection law, because Switzerland has incorporated basic data protection concepts (e.g. the concept of particularly sensitive personal data) and basic principles of the DSK (in particular the general principles of data processing) into national data protection law.

5 More recently, Swiss data protection law has been particularly influenced by the EU's General Data Protection Regulation (DSGVO), because the federal legislature based the provisions of the FADP on the DSGVO as part of the total revision of the Federal Data Protection Act (DSG). The legislator considered this alignment of the totally revised FADP with the DSGVO to be necessary in order for the European Commission to continue to recognize the level of data protection in Switzerland as adequate with regard to cross-border data traffic between Switzerland and EU member states (so-called adequacy decision).

II. Subject and content of Article 13 FC

A. Constitutional concept of privacy

6 The Federal Constitution does not define in detail what is meant by the concept of privacy in the sense of Article 13 FC. However, an attempt at a definition can be found in the message of November 20, 1996, on the new FC. This describes the right to privacy as the right of “each person not to be prevented by the state from freely shaping their life and their interaction with other persons, as well as the right to respect for a personal sphere of confidentiality”. However, the right to respect and protection of privacy exists primarily in the private sphere (material scope of protection). However, Article 13 FC also protects private activities that take place in public. This is because people who are in public do not implicitly consent to being monitored, filmed, photographed or listened to by state authorities.

7 A uniform, scientifically generally recognized definition of the concept of privacy according to Article 13, para. 1 FC has not yet been established in the literature, which – to use the words of Oliver Diggelmann – has resulted in a “flight” into practice. In other words, the constitutional concept of privacy has been subject to different interpretations in legal practice because the term is relatively open and vague. In addition, different terms (e.g. privacy, private sphere or private life) are used in the literature. This diversity of terminology naturally carries the risk of misunderstandings and terminological confusion, because the constitutional concept of privacy, for example, is not congruent with the concept of private life as part of Art. 13 FC. In the present case, the concept of privacy (as distinct from that of private life) is therefore used as an umbrella term for all the circumstances covered by Article 13 FC. According to the understanding of the term used here, the partial content of private life protected under Article 13 para. 1 FC is therefore an essential area of life covered by the constitutional protection of privacy. The distinction can be schematically and simplistically represented as follows:

8 Despite, or perhaps because of, the conceptual difficulty of concisely defining the fundamental right to respect and protection of privacy, legal practice makes do with a list of typical encroachments and relevant areas of protection. It is therefore hardly surprising that there is a wealth of case law on typical cases of application of Article 13 FC, examples of which are presented in Section III. below (see below, N. 16 et seq.).

9 The ECtHR also determines on a case-by-case basis whether a matter even falls within the scope of protection of Art. 8 ECHR. Art. 8 para. 1 ECHR encompasses the right to respect for private and family life, home and correspondence. Art. 8 ECHR is invoked relatively often in proceedings before the ECtHR, but the number of judgments in which a violation of Art. 8 ECHR has been found is limited. According to the case-law of the Convention, the following, for example, fall within the scope of protection of Art. 8 para. 1 ECHR:

• The right to respect for private life under Art. 8 para. 1 ECHR includes personal autonomy and thus the right of self-determination. The right of self-determination also includes the right to identity and personal development, which includes the possibility of maintaining relationships with other people, including those of a sexual nature.

• Art. 8 para. 1 ECHR also covers business and professional activities.

• According to the case law of the ECtHR, environmental pollution (e.g. noise or other emissions) can affect the exercise of the right to respect for private and family life and home under Art. 8 para. 1 ECHR. In its judgment of April 9, 2024 (“KlimaSeniorinnen judgment”), the ECtHR followed up on this case law and derived from Art. 8 ECHR a “human right to effective protection against the adverse consequences of climate change for human health and quality of life”. The ECtHR found a violation of Art. 8 ECHR here because Switzerland violated its human rights protection obligation by failing to take sufficient measures to achieve the goals set out in the Paris Agreement. However, the question of how far such a state duty of protection extends in the context of climate change remained unanswered. This is because the Paris Agreement, on which the ECtHR based its judgment in the KlimaSeniorinnen case, among other things, does not impose any specific emission reduction obligations on the contracting states, and thus on Switzerland, nor does it provide them with specific instruments for achieving the objectives set out in the agreement.

• Art. 8 para. 1 ECHR also protects a person from telephone surveillance or the use of other technical surveillance devices by state actors.

10 The right to respect for family life under Art. 8 para. 1 ECHR protects the diverse forms of human coexistence in a family, which also includes respect for a partnership community of a same-sex or different-sex couple.

B. Personal scope of protection

11 Both natural and legal persons under private law are entitled to the right to respect and protection of privacy. However, the latter can only invoke those parts of Article 13 FC that are not linked to characteristics that are typically inherent to natural persons. For example, legal entities under private law are entitled to respect for their business premises, respect for their correspondence, postal and telecommunications traffic, and protection against the misuse of personal data, but not to protection of their private and family life.

12 Legal entities under public law, such as public corporations or public institutions, cannot in principle invoke Article 13 FC, because they are not generally entitled to fundamental rights. However, in exceptional cases, legal entities under public law may invoke fundamental rights and thus Article 13 FC “if they are acting under private law and are affected by the contested state act in the same way as a private individual”.

C. Individual and objective legal dimensions

13 According to the generally accepted view, Article 13 FC establishes not only purely defensive claims (the so-called subjective or individual legal dimension of a fundamental right), but also certain performance and protection obligations (the so-called constitutive-institutional or objective legal dimension of a fundamental right). In case law, positive protection obligations have been recognized in the area of private and family life. For example, in the context of secret video surveillance in the workplace, the ECtHR affirmed a duty of the Convention states to ensure a balance between the interests of employees and those of the employer. Furthermore, the ECtHR recognized, for example, the state's duty to ensure that relationships between members of a family can develop normally and that family life between parents and children is possible.

14 It should be noted that the duty to protect the right to privacy against private threats is in conflict with the private spheres of individuals that are protected by fundamental rights (e.g. Article 10 para. 2 FC, Article 26 FC or Article 27 FC). This raises the question of the standard by which the regulator should strike a balance between the constitutionally protected spheres of freedom of private individuals and the constitutional duty to protect against private threats to the right to privacy. Or, to put it more vividly: What criteria should the legislator use to protect individuals from the risks of new technologies used by private individuals without thwarting the opportunities offered by such applications and thus the exercise of constitutional freedoms? This question has recently become significantly more important due to the emergence of innovative technologies – such as the “Internet of Things” (IoT), “big data” or “artificial intelligence” (AI) – because private individuals can also threaten the right to privacy by using such technologies, without, however, being directly bound by Art. At the same time, private individuals can contribute to the realization of opportunities (e.g. the prospect of economic success, new scientific findings or new methods of dealing with diseases) by using innovative technologies, and in doing so make use of constitutional freedoms. The risk-based approach is linked to this area of tension because it ensures the most rational and science-based balance possible between the constitutional duty to protect private individuals from threats to their privacy and the constitutionally protected freedom of the private sphere. One of the objectives of the approach is to shape the legal handling of new technologies in such a way that losses in terms of compatibility with the common good and in terms of options for action are minimized as far as possible.

D. Demarcations

15 The protection of privacy under constitutional law is linked to the right to personal liberty (Art. 10 para. 2 FC) and the right to marriage and family (Art. 14 FC), which is why two questions of demarcation arise:

• According to the case law of the Federal Supreme Court, the right to personal liberty under Article 10 para. 2 FC is a subsidiary right to Article 13 FC. The prevailing doctrine follows this case law.

• As for the distinction between the right to privacy and the right to marriage and family under Article 14 FC, the latter protects the founding of a family, whereas Article 13 para. 1 FC guarantees family life. The two fundamental rights thus protect different circumstances.

III. Protection of privacy

A. Para. 1: Right to respect for privacy

1. Preliminary remarks

16 The fundamental right to privacy comprises five aspects; four of these are guaranteed in paragraph 1 and one in paragraph 2 of Article 13 FC. Art. 13 para. 1 FC protects private and family life (see below, N. 17 et seq. and N. 21 et seq.), the home (see below, N. 27 et seq.) and the confidentiality of correspondence, post and telecommunications (see below, N. 33 et seq.). In addition, paragraph 2 guarantees protection against the misuse of personal data (see below, N. 43 et seq.). The list of partial guarantees in Article 13 FC seems to be exhaustive. However, according to Biaggini and Diggelmann, paragraph 1 of Article 13 FC does not preclude a “complementary extension” by legal practice.

2. Privacy

a. Scope of protection

17 Art. 13 para. 1 FC establishes a constitutionally protected right to privacy. According to the Federal Court, this right protects “the identity, social relationships and intimate behavior of each natural person, honor and reputation, as well as, in particular, all information relating to a person that is not accessible to the public”. The right to respect for one's private life includes the right to privacy and intimacy. In other words, everyone has the right to decide for themselves which personal facts about their life they disclose to whom and when.

18 The right to respect for one's private life also protects the freedom of one's personal relationships. Therefore, everyone has the right to enter into, maintain or reject personal relationships with other people of their choice. According to the case law of the Federal Supreme Court, the freedom of relationships also includes same-sex relationships. In addition, the decision about gender identity is protected, in that the state may not unduly impede surgical or hormonal measures to adjust gender and must recognize gender identity. However, the right to respect for private life does not give rise to a right to reimbursement of the costs of gender reassignment surgery. Furthermore, according to the case law of the Federal Supreme Court, Art. 13 para. 1 FC does not give rise to a right to the introduction of a third gender or to the deletion of gender in the civil registry. The ECHR had already previously ruled that the requirement to register gender as male or female is compatible with Art. 8 ECHR. The ECHR justified this view by stating that there is insufficient consensus in European societies regarding the introduction of a third gender, which the ECHR uses as a guide for legal policy issues such as this. It is therefore conceivable that in the future the ECHR will qualify the obligation to be registered in the register as either male or female as a violation of the right to recognition of sexual identity and thus of Art. 8 ECHR.

19 Finally, according to the case law of the highest courts, the respect for the name and the respect for the social reputation also belong to the scope of protection of private life according to Art. 13 para. 1 FC. The Federal Court, for example, ruled that the state may not publish the name of a debtor in a loss certificate in the official gazette because such a publication is likely to affect the public reputation of a person. However, the right to privacy does not generally protect against reputational damage due to one's own misconduct.

b. Restrictions

20 Restrictions on the fundamental right to protection and respect for privacy can be of a variety of natures. It is therefore hardly surprising that doctrine and case law have identified various restrictions on the right to respect for privacy. The following restrictions are particularly worthy of mention:

• According to the case law of the Federal Supreme Court, the right to respect for private life is violated in the case of covert investigative activities by the police (e.g. surveillance, covert searches or covert preliminary investigations) or by private detectives for the purpose of clarifying the obligation of accident insurance to provide benefits, even if the surveillance takes place in a public space.

• According to the case law of the highest court, a mandatory test for staff in health and social institutions without a Covid certificate also constitutes an interference with the right to respect for the private life of the persons concerned, although this can be justified by the protection of public health, provided that the other conditions under Article 36 FC are met. According to the case law of the Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) regarding Article 8, a general statutory obligation to vaccinate children against nine diseases long known to medicine constitutes an interference with the right to respect for private life. The Federal Supreme Court also saw the obligation to be vaccinated against COVID-19 and the threat of dismissal in the event of failure to comply as an interference with the fundamental rights of a professional soldier (in particular, the personal freedom guaranteed by Article 10 para. 2 FC), which was, however, justified in this specific case because the vaccination requirement was aimed at ensuring immediate readiness for short-term deployments abroad. This is to be agreed to the extent that, in the specific context, no less severe measure was available to ensure immediate readiness for short-term deployments abroad for members of a special forces unit of the Swiss army (Special Forces Command). However, the considerations of the highest court indicate that a general obligation for all military personnel to be vaccinated against Covid-19 would hardly be justifiable.

• The ECtHR then found that the refusal of the Swiss authorities to recognize the parent-child relationship established by a US court between the non-genetic father and the child born out of surrogate motherhood constituted a disproportionate interference with the child's right to respect for his or her private life under Article 8 ECHR.

• The transfer of bank client data abroad also constitutes an interference with the right to privacy.

• Finally, according to the case law of the Federal Supreme Court, temporary admission may affect the constitutionally protected right to privacy if it is associated with legal or de facto disadvantages (e.g. obstacles to gradual integration, restrictions on mobility, difficulties in the labor market). The Federal Supreme Court confirmed such an infringement of the right to privacy in a specific case involving a 15-year-old girl from Syria who, together with her family, was provisionally admitted to Switzerland ten years ago. The Federal Supreme Court justified the restriction of the right to privacy in this case mainly on the grounds that, with the end of compulsory schooling soon approaching, obstacles may arise in connection with the search for an apprenticeship or a course of study. In this specific case, temporary admission thus led to specific disadvantages that justified granting a residence permit to the 15-year-old girl as a temporarily admitted person. If, based on the specific circumstances, an impairment of the right to privacy is affirmed, as in the present case, the person concerned may – based on the right to privacy – have a claim to the granting of a residence permit according to the case law of the Federal Supreme Court. With regard to the granting of a residence permit to temporarily admitted persons, integration, family circumstances and the reasonableness of a return to the country of origin must be taken into account. In addition, in the case of removals, the length of time spent in Switzerland is of considerable importance when determining whether the right to respect for one's private life within the meaning of Art. 13 para. 1 FC and Art. 8 no. 1 ECHR respectively. In BGE 144 I 266, the Federal Supreme Court ruled that, as a general guideline, where the duration of lawful residence is around ten years, social ties in Switzerland are generally so strong that “there must be special reasons for ending the residence”. The Federal Supreme Court derived this time threshold from Art. 34 para. 2 FNIA, according to which a settlement permit can generally be granted after a ten-year stay. In individual cases, the constitutionally protected right to respect for private life may already have been violated at an earlier point in time if a permit is not renewed, e.g. in the case of particularly pronounced integration.

3. Family life

a. Scope of protection

21 Art. 13 para. 1 FC also guarantees a fundamental right to protection of family life. This protects the personal relationships between family members and the way they live together, but also the decision not to live together or to have no contact. The concept of family within the meaning of Art. 13 para. 1 FC includes not only the traditional nuclear family (two-parent family with minor children) but also other forms of relationship (e.g. single-parent family, patchwork family or extended family), provided that the relationship is actually lived and has a certain intensity and stability. Under these conditions, cohabitation relationships are also protected. The following, for example, support a family life that is protected under constitutional law in the sense of Article 13, para. 1 FC: living together in a common household, mutual duty of care, financial dependencies and regular contact.

22 According to the established case law of the Federal Supreme Court, same-sex partnerships are protected by the right to respect for private life under Article 13 paragraph 1 FC (see above, N. 17 et seq.), but not – in contrast to the case law of the ECtHR – by the right to respect for family life. In line with the more recent case law of the ECtHR and in view of the legalization of same-sex marriage (“marriage for all”), however, this case law appears to be outdated. This must apply all the more since same-sex couples are now also allowed to adopt (step-)children. For these reasons, in view of changes in social values, a dynamic interpretation of the concept of family under Article 13, para. 1 FC is required. Consequently, the view expressed here is that the cohabitation of same-sex couples is protected by the right to privacy and the right to family life, especially since the right to privacy and the right to family life are closely intertwined (see above, N. 17 et seq.).

b. Restrictions

23 Of considerable practical significance are restrictions of the right to family life due to measures taken under the law on foreign nationals because under certain conditions a right to be present in Switzerland or a right to the granting of a permit under the law on foreign nationals arises from Article 13 para. 1 FC. The right to family life under Art. 13 para. 1 FC – analogous to Art. 8 ECHR – thus does not confer an absolute right of presence or an absolute right to family reunification.

24 In practice, an infringement of the right to protection of family life under Article 13, para. 1 FC is assumed “if a state removal or exclusion measure impairs a close, genuine and actually lived family relationship of a person entitled to reside in Switzerland with a secure residence permit, without it being possible or reasonable for the latter to maintain the corresponding family life elsewhere”. According to a judgment of the Federal Court concerning the right to privacy under Article 13, para. 1 FC, the person concerned has a sufficiently stable residence after a lawful period of residence of around ten years, because it can be assumed “that social relationships in this country have become so close that special reasons are needed to terminate residence” (see above, N. 20). This supreme court case law, according to which special reasons must exist to terminate a residence in Switzerland after a lawful stay of around ten years, can be transferred to the right to family life within the meaning of Art. 13 para. 1 FC, according to the view represented here. Because if a foreign person, based on the right to private life within the meaning of Art. 13 para. 1 FC, then according to the jurisprudence of the highest courts, this person also has a right to family reunification arising from the right to family life (Art. 13 para. 1 FC). However, such a right exists only if the conditions for family reunification laid down by domestic law are met. These domestic requirements must, of course, be compatible with Article 13 FC and Article 8 ECHR. By implication, it can be concluded that a foreign national who has no right of residence in Switzerland is not entitled to family reunification based on the right to family life within the meaning of Article 13 para. 1 FC.

25 In a judgment dated September 17, 2024, the ECtHR also ruled that Switzerland had violated the right to respect for family life as defined in Article 8 of the ECHR when it ordered the expulsion of a man from Bosnia and Herzegovina. The man had previously been found guilty of a serious violation of the Narcotics Act (BetmG), which is why he was also expelled from the country for five years on the basis of Art. 66 para. 1 let. o of the Swiss Criminal Code (SCC). This is because a qualified violation of the NarcA is an offence that, under the constitution and the law, leads to the ordering of an expulsion from the country, subject to a personal hardship case. So far, the Federal Supreme Court has taken a particularly strict line on the ordering of an expulsion in the case of such offenses committed by foreign nationals. For this reason, it also upheld the order of expulsion in the present case. In particular, the Federal Supreme Court did not accept the man's objections to an expulsion order, according to which his guilt was minor and only a conditional custodial sentence of 20 months had been imposed.

26 However, a majority of the ECtHR was unable to follow the judgment of the Federal Supreme Court. The Court justified its contrary view by stating that the man's guilt was minor, that only a conditional custodial sentence had been pronounced, that the man had no previous convictions, nor did he pose a threat to public security, and that he had been living in Switzerland for a long time, which is why the five-year expulsion would have a detrimental effect on family life and was therefore incompatible with the right to family life. However, the convincingly argued minority opinion in the context of a dissenting opinion counters that in the present case there are no valid reasons for the Court to deviate from the overall assessment of the Swiss courts because the Swiss courts carefully examined the specific circumstances and weighed the public and private interests for and against expulsion in the light of the Convention's case law. In particular, the fact that the man did not come to Switzerland until he was 30 years old and thus spent his formative years in his home country, was moderately integrated into Swiss society while maintaining close ties to his home country, but also the fact that that his wife and young children spoke Serbian and were familiar with the culture of Bosnia and Herzegovina, do not necessarily make moving to his home country unreasonable. In accordance with the Federal Supreme Court and the minority of the Court, the view expressed here is that an expulsion is justifiable in the specific case. Another argument against the man's right to remain in Switzerland and in favor of his expulsion is that the man received and transported 186 grams of pure cocaine to Zurich, thus committing a serious crime, since the line between a minor and a serious case is 18 grams of cocaine.

4. Dwelling

a. Area of protection

27 The right to respect for one's home, as expressly stated in Article 13, para. 1 FC, guarantees the individual a physical retreat, where they can be left alone, but also maintain social contacts outside of the public sphere. In addition to permanently or temporarily occupied homes (homes in the narrower sense), the material scope of protection also includes open spaces that are objectively considered private spaces based on their use. These include, for example, balconies, terraces and gardens. In principle, business premises are also protected, although, according to the case law of the Federal Supreme Court, their protection extends less far than in the case of (purely) private use if they are primarily used for business purposes. It is irrelevant whether the person concerned owns or rents the property.

28 The ECHR understands the term “home” within the meaning of Art. 8 para. 1 ECHR as a spatially defined area in which private and family life takes place. According to the case law of the ECHR, Art. 8 ECHR protects not only second and holiday homes but also commercial premises of legal entities. In individual cases, training centers and hotel rooms may also be protected by Art. 8 ECHR.

b. Restrictions

29 An infringement of the right to respect for one's home occurs, for example, when the state physically enters the home in the course of a search, or when state agents spy on or eavesdrop on the home from outside. In particular, the secret surveillance of state authorities using technical devices has become considerably more important with the advent of new technologies, because this creates new threats to the right to respect for one's home, which, in terms of the intensity of the interference, may go further than traditional state surveillance measures. For example, authorities can use drones to detect structural changes to properties, enabling insights into bedrooms and living rooms as well as balconies, terraces or gardens. The data protection officer of the Canton of Zurich has therefore stated that this constitutes an infringement of privacy (or, more precisely, of the right to respect for one's home). According to media reports, the French tax authorities have used AI-based software to detect undeclared private swimming pools; in the future, this software will also be used to identify other illegally constructed buildings and facilities.

30 The use of smart meters– also known as intelligent metering systems or intelligent electricity meters – is another problem area that has so far been little discussed in the context of the right to respect for one's home. This is because intelligent metering systems automatically transmit data on the electricity consumption of end customers to (state-owned) grid operators. These data provide information about which electronic devices are used in a household, when and to what extent. Consequently, smart metering systems can foster the subjective feeling of being constantly monitored and thus impair the free personal development of people within their own home, for example by causing those affected to adapt certain habits in their own home for fear of (abusive) surveillance.

31 From a fundamental rights perspective, covert surveillance of insured persons by social insurance agencies within the meaning of Art. 43a and Art. 43b ATSG is also problematic because it is not only permissible in generally accessible places, but also in places that are freely visible from a generally accessible place. The ATSG thus allows insured persons to be filmed by social insurance companies on publicly visible balconies and in garden squares, which can be seen as an infringement of the right to respect for the home of insured persons. It remains to be seen whether these new provisions for surveillance in the social security sector, which the federal legislature enacted in response to the ECtHR's “Vukota-Bojic” judgment, will stand up to scrutiny by the ECtHR.This is because, although the legislature has created a formal legal basis in the form of Art. 43a and Art. 43b ATSG, the legislator has created a formal legal basis because the ECtHR had previously criticized the fact that an insured person had been observed by the accident insurer without sufficient legal basis. However, in the aforementioned judgment, the ECtHR left open the question of the extent to which covert surveillance in the social security area is actuallynecessary to prevent social security fraud. Despite the considerable public interest in combating social security fraud, there may be doubts regarding the necessity of such surveillance, in thatthe unlawful receipt of social security benefits (social security fraud as defined in SCC Art. 148a) is already pursued by the competent prosecuting authorities in the context of surveillance in accordance with Art. 282 f. CrimPC) and can be sanctioned under criminal law. Or in the words of Pierre Heusser: “[...] the [...] new surveillance options are [...] unnecessary because the necessary investigations can easily be carried out by the law enforcement authorities with the existing legal basis.” However, it should be noted that covert surveillance of insured persons by social insurance companies may interfere less intensely with the right to respect for the home than surveillance by law enforcement authorities.

32 Finally, it is remarkable and problematic with what matter-of-factness the state has recently enacted or is considering enacting regulations that extend into the (highly) private areas of a home as a physical retreat. Examples include the rules on the permissible number of people in living spaces as part of efforts to contain the Covid-19 pandemic or the measures envisaged by the Federal Council in the draft of the Ordinance on Restrictions and Prohibitions on the Use of Electrical Energy in the Event of a Severe Power Shortage, such as temperature regulations for residential and office spaces. Such regulations reveal an increasingly interventionist understanding of the state that can hardly be reconciled with a liberal constitutional concept. Such requirements fundamentally restrict the right of individuals to decide for themselves how they live their lives in their own homes.

5. Secrecy of correspondence, post and telecommunications

a. Scope of protection

33 The secrecy of correspondence, post and telecommunications protects confidential communication between individuals. In addition to traditional forms of communication (post, telephone and fax), the right also covers modern means of communication such as e-mail, SMS, MMS, pagers, internet telephony and virtual communication platforms with a limited user group. According to the case law of the Federal Supreme Court, by contrast, “websites and publicly accessible newsgroups” are not covered by the secrecy of communications because the confidentiality of the communication cannot be relied upon here. Therefore, with regard to the scope of protection of the secrecy of correspondence, post and telecommunications, the decisive factor is whether the person concerned could reasonably expect confidential communication from an objective point of view.

34 The concept of correspondence, postal and telecommunications traffic is – in line with Art. 8 no. 1 ECHR – correctly interpreted by doctrine and case law in an technically neutral manner. For this reason, the secrecy of communication also covers new means of communication, which have become considerably more important in practice since Art. 13 para. 1 FC came into force. In this respect, the fact that the wording of the provision is geared more towards traditional forms of communication and therefore appears somewhat outdated is not particularly problematic. However, should FC Art. 13 be revised in the future, consideration should be given to using a more technology-neutral term in FC Art. 13, along the lines of Art. 7 of the Charter of Fundamental Rights of the European Union (CFR), which refers to the concept of communication and protects its confidentiality.

35 In substantive terms, the secrecy of communication protects both the content of and marginal data relating to the communication. In the case of telephone traffic, information such as the telephone number, location and duration of the telephone conversation is therefore also protected as marginal data, while in the case of internet traffic, e-mail and IP addresses are also protected.

36 The fundamental right to respect for the confidentiality of correspondence, post and telecommunications also applies to persons with a special status (e.g. prisoners on remand or serving a sentence or members of the army). However, the confidentiality of correspondence, post and telecommunications applies only to a limited extent to prisoners on remand or serving a sentence.

37 Private service providers in the postal and telecommunications sector are not directly bound by the secrecy of communications. However, the legislature is required by Article 35 FC to ensure that appropriate protection is provided.

b. Restrictions

38 In the recent past, in view of the further development of modern communication technologies, but also due to new forms of threat from terrorism and organized crime, the federal legislature has expanded the statutory basis for ordering preventive and repressive covert surveillance measures. For example, the surveillance of means of communication can be ordered as part of criminal proceedings (surveillance of postal and telecommunications traffic as defined in Art. 269 ff. of the Swiss Criminal Procedure Code, CrimPC), but also for reasons of state security on a preventive basis under the Federal Act on the Intelligence Service of the Canton of Bern (NDG). As a rule, such surveillance by state authorities constitutes a serious interference with the right to protection of the privacy of correspondence, post and telecommunications, which requires a sufficiently precise formal legal basis.

39 In several recent rulings, the ECtHR has assessed the permissibility of various forms of state surveillance of communications. For example, the Court found that the British system of mass surveillance of communications data and the procurement of such data from communications service providers was not compatible with Article 8 ECHR because there were no effective safeguards against abuses and no independent control mechanisms. In the case of “Centrum för Rättvisa v. Sweden”, the Grand Chamber – unlike a chamber of the Court in June 2018 – also found a violation of Article 8 ECHR because the Swedish regulations on telecommunications surveillance by the state secret service did not always guarantee effective ex post control. In both judgments, however, the ECtHR emphasised that the contracting states have a wide margin of appreciation in the design of state surveillance measures if and as long as the minimum criteria set by the Court are met.

40 The new NDG allows the Federal Intelligence Service (FIS) to monitor postal and telecommunications traffic (in real time) or to penetrate private computer systems using Trojans in order to, for example, “obtain information available there or transmitted from there”. The FIS now also has the option of monitoring electronic communication – including e-mails, search queries or internet telephony – without suspicion or reason (so-called cable reconnaissance). This surveillance potentially affects all people in Switzerland who use the internet. The Federal Court recently ruled that surveillance of this kind constitutes an infringement of the secrecy of telecommunications and the right to informational self-determination in accordance with Article 13, para. 2 FC. The court upheld an appeal by the association 'Digitale Gesellschaft' and referred the matter back to the Federal Administrative Court for substantive assessment.

41 In view of the widespread use of smartphones, it is hardly surprising that there are political efforts to allow the police to monitor mobile phones (in real time) as part of their police work. This is because smartphones leave data traces in the digital space that allow conclusions to be drawn about a person's communication behavior and whereabouts, which can be used to prevent criminal acts in a preventive manner. It is already technically possible to preventively inspect cell phones as part of a police operation or to search the content of communication on hosting or interpersonal communication services (e.g. WhatsApp, TikTok, Instagram, e-mail services, etc.) to curb the distribution of child pornography on the internet (also known as chat control). Despite the legitimate interests (maintaining public order and security) pursued by the police with the covert surveillance of smartphones, it should not be overlooked that such surveillance activities by the police may currently be problematic under constitutional law. This is because in most cantons there is likely to be a lack of a formal legal basis in the respective police law, as well as effective guarantees against abuses and independent control mechanisms. It is also questionable whether and to what extent such surveillance activities are necessary.

42 With the use of “smart home technologies” (also known as digital assistants), the question will (in the future) probably also arise as to whether and to what extent law enforcement authorities may use information collected by “smart home technologies” to solve crimes. The same question arises if the state wants to use such “smart home applications” for preventive surveillance in the future. Access to smart home technologies by the state as part of criminal proceedings and/or for reasons of national security will lead to serious infringements of the constitutionally protected secrecy of communications (as well as the right to privacy of the home). Such access must be regulated by law and limited in terms of duration and purpose. Furthermore, legally effective safeguards against abuse and independent control mechanisms must be provided.

B. Para. 2: Fundamental right to data protection

1. Scope of protection

43 FC enshrines in Art. 13 para. 2 a fundamental right to data protection, which is conceived as a sub-category of the rightto privacy or secrecy (Art. 13 para. 1 FC). In doctrine and jurisprudence, the fundamental right to data protection as set out in Art. 13 para. 2 FC is also referred to as the “right to informational self-determination” in the terminology of the German Federal Constitutional Court in the census judgment. However, Florent Thouvenin rightly points out that the idea of the right to informational self-determination, “i.e. the right of the data subject to determine in principle whether and for what purposes data about him or her may be processed,” hardly stands up to closer scrutiny. On the one hand, he shows, on the basis of the historical development of the fundamental right to informational self-determination, that neither the Federal Supreme Court nor legal doctrine has ever provided a justification for its existence, but has merely referred to the German Federal Constitutional Court's judgment on the right to a census. For this reason, the fundamental right to informational self-determination is, according to Florent Thouvenin, “on extremely shaky ground” because, in the absence of a proper justification, doctrine and jurisprudence are based only on the intuitive persuasiveness of the concept of informational self-determination, which is not sufficient for the existence of a fundamental right. On the other hand, his analysis of the core provisions of the Federal FADP shows that the idea of a right to informational self-determination has not been implemented at all for data processing by federal bodies and only selectively for data processing by private parties. Consequently, it cannot be said that the federal legislature implicitly recognized such a right when the Federal FADP was enacted. We therefore agree with Florent Thouvenin that the protection of privacy guaranteed by fundamental rights under the terms of Article 13 para. 1 FC already provides a meaningful conceptual basis that is suitable for covering all aspects of privacy and thus also the processing of personal data – i.e. data protection law.

44 According to prevailing doctrine and the case law of the Federal Supreme Court, the scope of protection of Article 13 para. 2 FC is not limited – contrary to its wording – only to protection against the misuse of personal data, but covers allstateprocessing of personal data (e.g. collecting, gathering, storing, and disclosing personal data to third parties, regardless of the means and procedures used). In the age of digitalization, however, the question increasingly arises as to whether and to what extent the scope of protection of Article 13 para. 2 FC is affected at all if state data processing does not pose any danger to the persons concerned, e.g. if state actors process personal data in the exclusive interest of the person concerned. This is because Art. 13 para. 2 FC is primarily intended to protect the data subject from discrimination by state data processing.

45 All information that relates to an identified or identifiable person and “can be assigned to them” is considered to be personal data or personal data within the meaning of Art. 13 para. 2 FC, which also includes IP addresses and marginal data from telecommunications. This personal reference points to the person entitled to fundamental rights, which is why data of legal entities are (still) protected under Art. 13 para. 2 FC. The fact that the totally revised FADP dispenses with the protection of data of legal entities (see Art. 1 e contrario FADP) does not change this.

2. Dimensions

a. The fundamental right to data protection as a right of defense

46 The fundamental right to data protection as a right of defense (dimension of subjective or individual rights) protects the individual against the processing of personal data by the state. However, in this function, the fundamental right to data protection does not offer protection against private data processing.

b. Fundamental right to protection against private data processing

47 Since the middle of the last century, Swiss legal practice and doctrine – under the influence of German legal theory – has recognized an objective legal dimension to fundamental rights: in addition to their defensive dimension, fundamental rights also establish state protection obligations against threats emanating from private third parties. This broader understanding of fundamental rights has been enshrined in law in Article 35 para. 1 FC, which stipulates that fundamental rights must be respected “in the entire legal order”. The objective legal dimension of the fundamental right to data protection within the meaning of Article 13 para. 2 FC in conjunction with Art. 35 para. 1 FC thus imposes an obligation on the state to protect individuals from the disadvantages of data processing by private individuals.

48 This fundamental right of protection against private data processing is, of course, directed at the democratically legitimate legislator and not at private individuals. The federal legislator has fulfilled this obligation by enacting the Federal FADP. This does not answer the question of the standard according to which a balance between the constitutionally protected freedoms of private data processors and the constitutional duty of protection against private data processing shouldbe struck. At this point, the risk-based approach (see above, N. 14) can help to partially resolve this tension because this regulatory approach creates a balance between the legitimate interests in the protection of personal data of private individuals and the legitimate interest in the use of personal data by private data processors. The risk-based approach provides for stricter requirements in the case of high levels of data protection risks in order to protect the data subjects, while providing for reduced requirements in the case of low levels of data protection risks in order to safeguard the private sphere of private data processors. The normative content of the risk-based approach is thus to design the scope and intensity of data protection provisions differently depending on the respective risk. A risk-based differentiation of data protection regulations has the advantage that threats to the personal rights of the data subject are minimized in proportion to the risk by appropriate data protection provisions, without thwarting the spheres of freedom of private data processors.

3. Restrictions

49 With the use of new types of(mass) surveillance systems in public spaces, state authorities have instruments at their disposal that, while serving public security and order and thus the protection of classic police assets, can also (significantly) impair the fundamental right to data protection. Recently, automatic facial recognition has been the subject of particularly heated debate. Automatic facial recognition technologies can be used for the preventive surveillance of publicly accessible spaces, for security purposes or for the investigation of criminal offences. Automatic facial recognition is when digital facial images of natural persons are automatically processed to identify or verify the person concerned. According to legal literature, the use of such facial recognition systems constitutes a serious infringement of Article 13, para. 2 FC, whereby the prohibition of discrimination (Article 8, para. 2 FC) and the freedom of expression and assembly (Article 16 and Article 22 FC) may also be affected. In the “Glukhin v. Russia” case, the ECtHR ruled for the first time on the use of automatic facial recognition by law enforcement authorities. The Court found that the processing of personal data using facial recognition technology to investigate an administrative offense as part of an administrative procedure – on the one hand, to identify the person concerned on the basis of the photos and videos published on Telegram, and on the other hand, to locate and arrest them while they were traveling on the Moscow subway – is not compatible with Article 8 of the ECHR. In the ECtHR's view, such data processing using facial recognition technology to investigate a misdemeanor is not necessary in a democratic society. However, the ECtHR did recognize in the judgment the legitimate need of the contracting states to use facial recognition technology to solve crimes, particularly in connection with terrorism and organized crime, which, however, according to the court, requires detailed regulations with regard to the specific forms of application of facial recognition technology and strict safeguards against abuse and arbitrariness. For this reason, too, the ECtHR ruled in the specific case that the use of facial recognition technology was in violation of the convention because such regulations are largely absent in Russia. Consequently, the legislator will have the difficult task of finding a balance between the legitimate concern for the protection of constitutionally guaranteed freedoms and the public interest in security, so that the use of automated facial recognition technology is carried out in a manner that is consistent with human and fundamental rights.

50 In the case of automated vehicle search and traffic monitoring (AFV), mobile or stationary devices are used to systematically capture the license plates of passing vehicles using a camera. In addition to the identity of the vehicle owner, further data may also be collected – for example, the time of the check, location, direction of travel and other vehicle occupants. However, the AFV is not limited to processing such identification information. Rather, the personal data collected using the AFV is merged with other data collections and automatically compared, i.e. the AFV enables “serial and simultaneous processing of large and complex data sets within fractions of a second”. The Federal Supreme Court saw this as a serious infringement of the fundamental right to data protection under Art. 13 para. 2 FC, because the AFV does not collect personal data either on an ad hoc basis or on the basis of a specific suspicion, which has a deterrent effect (so-called “chilling effect”), especially since the subsequent (secret) use of such personal data by the authorities can trigger a feeling of being monitored. Furthermore, according to the Federal Supreme Court, there is a risk that data subjects may be wrongly suspected due to an error rate inherent in the system.

51 According to the case law of the Federal Supreme Court, the taking of the body's own reference samples necessary for the DNA analysis (e.g. buccal mucosa swab or blood sample) affects the fundamental right of physical integrity enshrined in Art. 10 para. 2 FC, the subsequent creation of a DNA profile and its processing by state actors the fundamental right to data protection under Art. 13 para. 2 FC.

52 The use of database technologies can give rise to new threats to the fundamental right to data protection as defined in Article 13 para. 2 FC. For example, AI-based analysis or evaluation of social media mass data by state actors (also known as “social media intelligence” [SOCMINT]) affects the scope of protection of Article 13 para. 2 FC. Artificial intelligence is also increasingly being used in healthcare, for example to detect blood poisoning (sepsis), pneumonia or cancer at an early stage and to suggest personalized therapies. However, such AI prediction tools require a large amount of patient data so that the algorithms of such prediction tools can be trained on the basis of patient data. The risks for the constitutionally protected right to data protection under Art. 13 para. 2 FC, which may result from the processing of personal data by state authorities using ChatGPT and comparable AI-supported applications, are still largely unresearched.

About the author

Dr. Joel Drittenbass works as a lawyer in the regulatory team of VISCHER AG in Zurich. He advises and represents parties in public law matters, in particular in water and environmental law, health law and data protection law. His main focus is on advising companies that operate in regulated markets, in particular in the energy and healthcare sectors. He also teaches, researches and publishes in the areas of constitutional and administrative law, with a particular focus on the law of new technologies (e.g. autonomous robots, artificial intelligence). The author represents his personal opinion here.

Joel Drittenbass studied law at the University of St.Gallen (M.A. HSG in Law 2017). Before and during his doctorate, he worked as a research assistant at the Chair of Public Commercial Law at the University of St.Gallen (ILE-HSG). In his dissertation, which was awarded the Professor Walther Hug Prize 2021, he dealt in depth with data protection and medical device law aspects of autonomous medical robots. Certain statements in this article on Article 13, para. 2 FC are therefore based on the author's dissertation.

Acknowledgements

The author would like to express his sincere thanks to Damian Wyss, M.A. HSG in Law, Antonia Straden, M.A. HSG in Law and Economics, Céline Kehl, B.A. HSG in Law and Economics, Andrea Chawla, BLaw, Timo Tschopp, B.A. HSG in Law, and Giulia Odermatt, MLaw, for their support in researching and editing this commentary. We would also like to express our sincere thanks to Belinda Bachmann for her highly competent and efficient proofreading. The author would also like to thank David Rosenthal, partner at VISCHER Ltd, for his valuable suggestions regarding this commentary. Finally, the authors would like to express their particular gratitude to the editors, Prof. Dr. Odile Ammann, LL.M., and Dr. Stefan Schlegel, for their critical review of this commentary. Their comments have led to significant improvements in this commentary.

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