-
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- In a nutshell
- I. General
- II. Personal scope of application (Art. 2 para. 1 FADP)
- III. Material scope of application: data of natural persons
- IV. Exceptions
- Bibliography
In a nutshell
The FADP applies to the processing of data of natural persons by federal bodies and private persons. However, the FADP does not apply absolutely: certain cases, in particular data processing exclusively for personal use or in the context of ongoing judicial or federal proceedings, are excluded from the FADP or are governed by separate, specific (procedural) provisions.
I. General
A. Norm Purpose
1 Article 2 FADP defines the scope of application of the Federal Data Protection Act and the corresponding exceptions. The scope of the FADP was partially expanded in the revision, in particular to meet the requirements of ERK 108+: Thus, the exceptions relating to pending civil proceedings, criminal proceedings, international mutual legal assistance proceedings, and proceedings under state and administrative law (Art. 2 para. 2 lit. c FADP) and the one relating to public registers of private legal transactions (Art. 2 para. 2 lit. d FADP) have been adapted.
B. Regulatory competence
2 The competence to regulate data protection law derives from the general federal system of competences: under Articles 3 and 42 FC, the Confederation has a limited individual power, while the cantons exercise all tasks that are not assigned to the Confederation.
3 The Confederation is thus entitled to regulate data processing in those areas in which it may in principle legislate - in particular within the framework of the organization and procedure of the federal authorities (Art. 164 para. 1 lit. g FC). In the ingress of the FADP, reference is made to Art. 95 ("Private sector activity"), Art. 122 ("Civil law") and Art. 173 para. 2 FC ("Other tasks and powers"). Even if these articles do not explicitly mention the federal government's competence in the area of data protection, it is undisputed that they include the competences to enact data protection provisions.
4 Whether the processing of personal data satisfies the requirements of data protection law is determined, on the one hand, by the provisions of the (information and) data protection laws (so-called "general" data protection law) and, on the other hand, by the provisions in those special laws that regulate data processing in specific cases of application ("special" data protection law).
5 In a first step, both public bodies and private individuals must be guided by "general" data protection law if they wish to process personal data:
Federal bodies and private persons must be guided by the processing requirements of the federal data protection law.
If cantonal public bodies process personal data, the cantonal (information and) data protection laws must be followed in each case.
6 The "general" data protection law regulates - at the cantonal and federal level - the following topics, among others: Legislative purpose, scope, definitions, processing principles, rules on accountability, rights of data subjects, etc. In accordance with its nature as basic legislation, the "general" data protection law also generally contains exceptional provisions that define in which cases special legal requirements take precedence.
7 In a second step, public bodies must check whether they are permitted to process the personal data in question for the purpose of fulfilling their legal duties, i.e. whether the relevant substantive laws (the area-specific, "special" data protection law) specifically regulate data processing.
8 The subject law or the "special" data protection law must meet the requirements of general data protection law and, in addition to the purpose of the processing (i.e., the specific task for the fulfillment of which personal data must be processed), must specify, among other things, the responsibilities and any requirements for disclosure.
9 Private individuals, for their part, must ensure in this second step that they have a justification for the data processing in question, insofar as the processing violates personal rights.
II. Personal scope of application (Art. 2 para. 1 FADP)
10 Federal data protection law applies to the processing of data of natural persons by federal bodies (see N. 11 Commentary on Art. 5 lit. i and OK-Zysset Art. 34 FADP) and private persons (see OK-dal Molin on Art. 30 FADP). The respective cantonal (information and) data protection law applies to the processing of personal data by cantonal public bodies (see n. 5).
III. Material scope of application: data of natural persons
11 Every human being is considered a natural person in the legal sense, and every human being has legal capacity (Art. 11 para. 1 CC). Every human being thus has the capacity to have rights and obligations (Art. 11 para. 2 CC) - these rights also include the right of personality from the perspective of civil law as well as data protection law (Art. 28 ff. CC or Art. 1 in particular in conjunction with Art. 30 FADP and Art. 34 FADP).
12 With the last data protection revision, the material scope was restricted: Data of legal entities are no longer covered by the FADP, but this is in any case insignificant in practice, because legal entities can still claim personality violations based on Art. 28 et seq. ZGB (such as damage to reputation). They also enjoy the protection of the Federal Act against Unfair Competition, the Copyright Act or the specific provisions on professional, trade or manufacturing secrets.
IV. Exceptions
13 The FADP does not apply absolutely. Art. 2 para. 2-4 FADP mention various exceptions for which the FADP does not apply.
A. Use for private purposes (Art. 2 para. 2 lit. a FADP)
14 The FADP does not apply if the personal data in question is processed by a natural person exclusively for personal use (Art. 2 para. 2 let. a FADP). An example of this is the collection of letters or e-mails that a married couple has written to each other over many years and which also contains remarks and anecdotes about other people. Also exempt from the FADP are private photo albums with pictures of family celebrations, vacation acquaintances, etc., as long as the photos are not further disseminated (e.g. digitized and published).
B. Processing by the Federal Assembly and parliamentary committees (Art. 2 para. 2 lit. b FADP)
15 Personal data are processed by the Federal Councils and parliamentary commissions in the course of their deliberations (Art. 2 para. 2 let. b FADP). This provision was taken over unchanged from the old FADP. According to the dispatch, the reason for the exception from the FADP is that parliament would not be able to perform its constitutional duties if it had to observe the data protection principles in every case - the dispatch explicitly mentions the requirements for the disclosure of personal data here. However, it seems far more plausible to argue that the special law governing the business of the Councils (the "special data protection law") contains detailed provisions on the handling of information (and thus personal data), which is why subordination to the FADP is simply not necessary.
C. Data processing by diplomatic missions and international organizations (Art. 2 para. 2 lit. c FADP)
16 Also not covered by the FADP are those processing operations carried out by a diplomatic or consular representation of another state or an international organization. Covered by this exception are, in other words, the institutional beneficiaries under Article 2(1) of the Host State Act of 22 June 2007, which enjoy immunity from jurisdiction in Switzerland: based on international law and the DPA, they enjoy independence and freedom of action so that they can perform their international functions; accordingly, they cannot be expected to submit to the rules of Swiss law with respect to the data processed by their diplomatic or consular representations.
D. Ongoing legal or federal proceedings (Art. 2 para. 3 FADP)
17 The FADP also does not apply to ongoing court proceedings or proceedings under federal law, as these are governed by the respective procedural law, which contains detailed provisions on the handling of personal data (of the parties, plaintiffs, etc.).
18 The term "court proceedings" includes all proceedings before cantonal and federal criminal, civil and administrative courts, but also before arbitration courts with their seat in Switzerland. Unlike the aDSG, Art. 2 para. 3 FADP does not use the term "pending proceedings", since only civil procedural law refers to lis pendens and this term has sometimes led to problems of delimitation.
19 The only decisive factor is now whether proceedings take place before a court or are governed by a federal procedural code. Proceedings take place before a court when the court is seized of a case for the first time by instituting proceedings under the relevant rules of procedure. A proceeding is governed by federal rules of procedure as soon as a particular matter is dealt with by an authority in accordance with the provisions in one of these laws.
20 The federal procedural codes that contain provisions on the handling of personal data or on the rights of the persons concerned in the context of these proceedings include in particular
the Federal Act on Administrative Procedure of 20 December 1968 (APA, insofar as it does not concern first-instance administrative proceedings),
the Code of Civil Procedure of 19 December 2008 (CPC),
the Federal Act of 11 April 1889 on Debt Collection and Bankruptcy (SchKG),
the Code of Criminal Procedure of October 5, 2007 (StPO),
the Federal Law on Administrative Criminal Law of March 22, 1974 (VStrR), or else
the Federal Act on International Mutual Assistance in Criminal Matters of 20 March 1981 (IMAC).
21 Data processing by the administrative services of courts and authorities does not fall within the scope of the relevant procedural law, so Art. 2 para. 3 FADP does not apply.
22 As a rule, the relevant procedural code remains applicable even after the conclusion of the proceedings: For example, special requirements apply to file maintenance, file inspection, rectification or file retention. However, it is not excluded that the applicable procedural law declares the FADP applicable after the conclusion of the proceedings (cf. Art. 99 Criminal Procedure Code).
E. Public registers of private legal transactions
23 Finally, data processing in the context of those public registers of private legal transactions that are maintained on the basis of federal law and by federal bodies are excluded from the scope of application of the FADP. The respective special law applies here. These registers include in particular
the Zefix electronic civil status register
the aircraft register of the Federal Office of Civil Aviation, and
the registers of the Swiss Federal Institute of Intellectual Property (in particular the register of trademarks, patents and designs).
24 The public registers of private legal transactions, for which the cantons are responsible, are subject to cantonal data protection law. The cantonal registers include, for example.
the land register
the shipping register,
the commercial registers and
the debt enforcement and bankruptcy registers.
The author gives her personal assessment in this commentary.
Bibliography
Rudin Beat, Kommentierung zu Art. 2 DSG, in: Baeriswyl Bruno/Pärli Kurt/Blonski Dominika (Hrsg.), Datenschutzgesetz, Stämpflis Handkommentar, 2. Aufl., Bern 2023.
Rudin Beat/Husi-Stämpfli Sandra, Kommentierung zu Art. 37 DSG, in: Maurer-Lambrou Urs/Blectha Gabor-Paul (Hrsg.), Datenschutzgesetz / Öffentlichkeitsgesetz, Basler Kommentar, 3. Aufl., Basel 2014.
Rosenthal David/Jöhri Yvonne, Handkommentar zum Datenschutzgesetz sowie weiteren, ausgewählten Bestimmungen, Zürich 2008.