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- 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. Objective elements of the offense
- III. Subjective elements of the offence
- IV. Illegality and culpability
- Bibliography
- Materials
In a nutshell
The provision of Art. 60 criminalizes (i) the intentional violation of the duty to provide information, (ii) the intentional violation of the duty to provide information, and (iii) the intentional lack of cooperation with the FDPIC in the course of an investigation. A fine of up to 250,000 Swiss francs may be imposed for the fulfillment of any of these offenses.
I. General
1 Art. 60 incorporates the regulatory content already contained in Art. 34 aDSG. Art. 34 para. 2 lit. a aDSG is not taken over, as the corresponding reporting obligations are no longer included in the revised FADP. Newly and additionally, the penal norm also extends to the duty to inform in the case of an automated individual decision according to Art. 21. In contrast to Art. 34 aDSG i.V.m. Art. 14 aDSG, the duty to inform no longer applies only to personal data and personality profiles requiring special protection, but now, according to Art. 60 in conjunction with. Art. 19 for all personal data. This further expands the provision. In the preliminary draft, a very comprehensive article was created for this purpose. A penalty was envisaged for the intentional violation of information, disclosure and cooperation obligations and also an element of negligence. In the consultation process, the punishability of negligent violations was criticized in some cases. As a result, the element of negligence was dispensed with in Art. 54 FADP.
2 The penal provision of Art. 60 para. 1 is an application offense, and that of Art. 60 para. 2 is an official offense.
3 The provision of Art. 60 is intended, on the one hand, to protect persons who may be affected from the endangerment of their personality and, on the other hand, to protect the supervisory function of the FDPIC (and thus its ability to function) in the private sphere. This is an abstract endangerment offense; the offense is completed with the provision of false or incomplete information or failure to provide information/details in breach of duty or with refusal to cooperate with the FDPIC. There need not be a violation of personality rights or the FDPIC's investigation procedure need not have been impaired.
4 Art. 60 para. 2 is to be distinguished from the provision of Art. 63 in that, in contrast to Art. 63, Art. 60 para. 2 does not require the existence of an order in the formal sense.
5 The penalty provision continues to be structured as an infraction, but the upper limit of the fine provided for it has been raised significantly. Art. 50 VE-FADP still provided for a fine of up to 500,000 Swiss francs. The Federal Council justified this amount with "the lack of control of the persons concerned over their data, the lack of transparency in data processing and the increasingly powerful economic actors". Comparisons were also drawn with other criminal provisions of ancillary criminal law (such as Art. 49 of the Banking Act) and the importance of high fines in deciding whether Swiss legislation still offers a "sufficient level of protection" in relation to the EU. This upper limit on fines provided for in the preliminary draft caused criticism in the consultation process. In some cases the fines were considered too low, in others too high. It was also criticized that the sanctions are only directed against private individuals. In response to this, the upper fine limit in Art. 54 of the FADP was set at 250,000 Swiss francs, which corresponds to 25 times the previous fine. The actual fine is determined taking into account the economic circumstances of the offender (Art. 106 para. 3 SCC in conjunction with Art. 47 SCC). Art. 54 FADP has been taken over as Art. 60 with a few editorial changes.
II. Objective elements of the offense
A. Circle of offenders
6 Art. 60 is a special offense, because only those who are obliged to provide information or to cooperate (Art. 60 para. 1) or those who are requested by the FDPIC to provide information or to cooperate in any other way within the framework of an investigation (Art. 60 para. 2) can be considered as perpetrators. Anyone who cannot be a perpetrator under Art. 60 and therefore does not respond to a request for information or provides false information remains unpunished. If the conditions are met, it is possible to be punished as an instigator.
7 The orientation of the criminal provision is in contrast to the DSGVO, in which the respective company is held responsible. In Switzerland, the natural persons who actually act on behalf of the company and culpably fulfill the offense are held liable. This is justified by the rejection of the attribution of third-party culpability in corporate criminal liability by Art. 102 StGB. In addition, there would not yet be sufficient criminal procedural guarantees in administrative procedural law, which would lead to legal uncertainty. In order to counteract the lack of corporate criminal liability, the Federal Council envisages a tightening of the criminal liability of governing bodies through the application of Art. 6 VStR in addition to Art. 29 StGB.
8 Prosecutions can be brought against management personnel, but also against other persons who are responsible for relevant operations. At the same time, however, the obligated persons are not only responsible for the false information they themselves provide, but also, for example, for the case in which an employee provides false information in accordance with his instructions.
B. Penalty-bearing conduct
9 Art. 60 provides for three different offenses. Penalties are imposed for breach of the duty to provide information (Art. 60 para. 1 lit. a; below, n. 10 ff.), breach of the duty to provide information (Art. 60 para. 1 lit. b; below, n. 17 ff.) and failure to cooperate with the FDPIC in the course of an investigation (Art. 60 para. 2; below, n. 19 ff.).
1. provision of false or incomplete information (Art. 60 para. 1 lit. a)
10 Art. 60 para. 1 lit. a criminalizes the provision of false or incomplete information and thus refers to the violation of Art. 19, Art. 21 and Art. 25-27.
11 The objective elements of the offense include the existence of an obligation to provide information and the absence of a reason to waive or limit this obligation (Arts. 19, 21 and 25-27). A distinction can be made between the duty to provide information under Arts. 19 and 21 and the duty to provide information under Arts. 25-27.
12 Under the duty to provide information (Art. 25), only those who provide false or incomplete information are liable to prosecution, but not those who, for example, assert a false ground for refusal under Art. 26. Information is false if it does not correspond to the true facts (e.g. if the person requesting information is provided with data other than that which was actually processed, or if it is untruthfully claimed that no data is being processed from him/her). In addition, information is also false if it is misleading, i.e. if it creates a false impression of the true facts. Information is incomplete if not all the details listed in Art. 25 are provided (e.g. if the retention period of the personal data is not disclosed, although this would be possible). Information may also be cumulatively false and incomplete.
13 However, it is not a criminal offense if someone discloses that the information is incomplete by blacking it out or in some other way, since this does not create the appearance of completeness. The reason for this is that in the case of refused disclosure, action is easily possible via Art. 32, whereby the civil court can order the provision of the information under penalty of Art. 292 SCC. Furthermore, Art. 60 para. 1 lit. a does not apply in cases where information is provided but a fee is charged in violation of the law. In such a case, however, Art. 146 SCC (fraud) is sometimes applicable if the false impression is created that the fee is the fee normally owed.
14 Likewise, Art. 60 para. 1 lit. a does not apply if (e.g. because the existence of a situation requiring information is denied) no information is provided at all or only with delay. However, in the case of a refusal to provide information, criminal liability under Art. 60 para. 1 lit. b is possible.
15 In the context of the duty to provide information (Art. 19 and 21), the provision of false or incomplete information is also punishable.
16 In Art. 21, the duty to provide information no longer relates only to the acquisition of personal data and personality profiles requiring special protection, as in Art. 14 aDSG, but now to the acquisition of all personal data. The duty to inform has thus become more comprehensive in terms of content and the risk of criminal liability has been expanded.
2. Failure to provide information (Art. 60 para. 1 lit. b)
17 Art. 60 para. 1 lit. b covers those cases in which a private person fails to (i) inform the data subject that personal data about him or her have been obtained (Art. 19 para. 1) or that an automated individual decision has been taken (Art. 21 para. 1) or (ii) provide the data subject with the information he or she needs to assert his or her rights under the FADP (Art. 19 para. 2). The objective elements of Art. 61 lit. b would be fulfilled, for example, if a company fails to provide information in a legally adequate privacy statement about which personal data it processes.
18 It is also a criminal offense if a company gives a reason for not providing the information. In this respect, criminal liability is broader than in the case of Art. 60 para. 1 lit. a.
3. Providing false information or refusing to cooperate in an investigation by the FDPIC (Art. 60 para. 2).
19 The penal provision of Art. 60 para. 2 takes over the regulatory content of Art. 34 para. 2 lit. b aDSG, which declared the provision of false information or refusal to cooperate in the context of an investigation by the FDPIC to be punishable. It refers to the duty to cooperate set forth in Art. 49 para. 3, according to which private persons are obliged to provide the FDPIC with all information and documents necessary for the investigation. The offense of "providing false information" is a crime of activity, and the offense of "refusing to cooperate" is a true offense of omission.
20 The objective elements of the offense presuppose a formal investigation by the FDPIC pursuant to Art. 49, which has been opened because of a possible violation of data protection provisions. Any false information or refusal to cooperate in the context of investigations carried out by the FDPIC outside of a formal investigation are not covered by Art. 60 para. 2. Another prerequisite is that (i) the FDPIC unambiguously requested the perpetrator to provide information or to cooperate in any other way within the framework of the opened investigation, (ii) the FDPIC was entitled to make this request, (iii) the perpetrator either provided false information or refused to cooperate as requested, and (iv) the perpetrator was not entitled to provide false information or to refuse to cooperate (e.g. based on the right to refuse information mentioned in Art. 49 para. 3). False information is not punishable if the FDPIC had not requested any information at all.
21 The criminal court may not limit itself to examining the act or omission of the accused person, but must also examine whether the request by the FDPIC to provide information or to cooperate was lawful.
22 The request of the FDPIC does not have to be made with reference to criminal liability (in contrast to Art. 63 and of Art. 292 SCC), but it must be clear to the requested person that his cooperation is not voluntary. In cases where the FDPIC requests a potentially punishable person to cooperate, it must be required that he explicitly informs this person of the right to refuse to provide information.
III. Subjective elements of the offence
23 From a subjective point of view, intent is required. It is sufficient to have contingent intent, i.e. to consider it possible that the offense will be committed and to accept that it will be. At the time of the commission of the crime, the offender must have been aware of the circumstances of the case on the basis of which the objective facts must be regarded as having been established, and he must have understood the subsequent legal evaluations at least in layman's terms (so-called parallel evaluation in layman's terms).
24 In practice, it is probably not uncommon for the acting person to be aware of the possibility that information could be incomplete and to accept this because he or she prefers to provide such information rather than no information at all. If the person concerned is given a declaration of completeness, intent is regularly assumed if the information is not complete after all. The party obliged to provide information acts negligently and is thus not liable to prosecution if it has relied on the fact that the supplied, non-verified data is complete. The distinction from the existence of contingent intent must be made on the basis of circumstantial evidence in each individual case.
25 If the perpetrator is mistaken about the facts relevant to the facts of the case, there is an error of fact pursuant to Art. 13 SCC. In this case, the court judges the offense according to the perpetrator's conception of the facts. This is particularly relevant if the person obliged to provide information provides incomplete information because he or she believes it to have been provided in full. An error of fact can also exist with regard to normative elements of the offense, such as the question of whether there is a corresponding duty to provide information or to report. In this case, the opinion of an average third party is decisive.
IV. Illegality and culpability
26 According to Art. 333 para. 1 SCC, the general rules of the SCC apply with regard to unlawfulness. Conduct in accordance with the offence may exceptionally be permitted on the basis of legal or supra-legal grounds for justification.
27 With regard to guilt, the general rules also apply under Art. 333 para. 1 SCC. Criminal liability may be hindered by a mistake as to prohibition according to Art. 21 StGB. However, this is only the case if the person who comes into question as the perpetrator could not have known that he was acting unlawfully. In this case, he or she believes that he or she has done nothing wrong. If the error of law could have been avoided, the penalty is only reduced.
Bibliography
Niggli Marcel Alexander/Maeder Stefan, Kommentierung zu Art. 34 aDSG, in: Maurer-Lambrou Urs/Blechta Gabor-Paul (Hrsg.), Basler Kommentar, Datenschutzgesetz / Öffentlichkeitsgesetz, 3. Aufl., Basel 2014.
Niggli Marcel Alexander/Maeder Stefan, Kommentierung zu Art. 21 StGB, in: Niggli Marcel Alexander/Wiprächtiger Hans (Hrsg.), Basler Kommentar, Strafrecht (StGB/JStGB), 4. Aufl., Basel 2018.
Rosenthal David, Das neue Datenschutzgesetz, in: Jusletter 16. November 2020, https://jusletter.weblaw.ch/juslissues/2020/1045/das-neue-datenschutz_0e89d89706.html, besucht am 8.8.2023.
Rosenthal David/Gubler Seraina, Die Strafbestimmungen des neuen DSG, SZW 1/2021, S. 52 ff.; Rosenthal David/Jöhri Yvonne, Handkommentar zum Datenschutzgesetz sowie weiteren, ausgewählten Bestimmungen, Zürich 2008.
Wohlers Wolfgang, Kommentierung zu Art. 66 DSG, in: Baeriswyl Bruno/Pärli Kurt/Blonski, Dominika (Hrsg.), Stämpflis Handkommentar, Datenschutzgesetz, 2. Aufl., Bern 2023.
Materials
Botschaft zum Bundesgesetz über die Totalrevision des Bundesgesetzes über den Datenschutz und die Änderung weiterer Erlasse zum Datenschutz vom 15.9.2017, BBl 2017 S. 6941 ff. (zit. Botschaft 2017), abrufbar unter https://www.admin.ch/opc/de/federal-gazette/2017/6941.pdf, besucht am 8.8.2023.
Erläuternder Bericht des Bundesamts für Justiz BJ zum Vorentwurf für das Bundesgesetz über die Totalrevision des Datenschutzgesetzes und die Änderung weiterer Erlasse zum Datenschutz vom 21.12.2016, abrufbar unter https://www.bj.admin.ch/dam/bj/de/data/staat/gesetzgebung/datenschutzstaerkung/vn-ber-d.pdf.download.pdf/vn-ber-d.pdf (zit. Erläuternder Bericht VE-DSG), besucht am 8.8.2023.
Zusammenfassung des Bundesamts für Justiz BJ der Ergebnisse des Vernehmlassungsverfahrens vom 10.8.2017 betreffend Vorentwurf für das Bundesgesetz über die Totalrevision des Datenschutzgesetzes und die Änderung weiterer Erlasse zum Datenschutz vom 21.12.2016 (zit. Zusammenfassung Vernehmlassung VE-DSG), abrufbar unter https://www.bj.admin.ch/dam/bj/de/data/staat/gesetzgebung/datenschutzstaerkung/ve-ber-d.pdf.download.pdf/ve-ber-d.pdf, besucht am 8.8.2023