Is web analytics illegal?
Media reports in which experts describe the use of web analytics tools as illegal are causing concern among advertising and marketing professionals. However, the issue isn’t as serious as it’s made out to be. By Ueli Grüter, LL.M., attorney, partner at Grüter Schneider & Partner, Zurich/Lucerne, lecturer in communications law at the Lucerne University of Applied Sciences and Arts, and editor of the practical handbook Kommunikationsrecht.ch.
When assessing the legal conformity of the use of web analytics tools, the provisions of the Unfair Competition Act (UWG) and the Data Protection Act are paramount.
Fair trading law
Fair trading law requires that web analyses are carried out in good faith. This also includes the principle of transparency. In practice, these two principles mean that website visitors must be explicitly informed about the analysis.
Privacy
Whether the Data Protection Act also applies to web analyses is questionable. This is because the Data Protection Act only applies to data that can be directly traced back to a person. As users generally only identify themselves with a randomly assigned IP address when surfing the internet, the data collected via web analytics cannot be assigned to an individual person. However, because providers are required by law to retain individual connection data for six months, there is still a latent risk of linking web analysis data to actual persons.
It is therefore advisable to comply with the principles of data protection law when using web analytics tools. In addition to the principle of good faith and the principle of transparency already mentioned in connection with fair trading law, these are the principles of proportionality and purpose limitation.
The principle of proportionality means that only data that is necessary and suitable for the specific web analysis may be collected. Data collection in advance is therefore not permitted from this point of view.
In the context of web analytics, purpose limitation means that the data collected may only be used for purposes that were previously communicated to visitors to the website or that they must assume based on the circumstances.
Data transfer abroad
With some web analysis tools, the data is not evaluated in Switzerland, but is sometimes even sent abroad directly via the browser. This is permissible if the foreign country in question also guarantees adequate data protection. This applies in particular to all EU member states. A US partner to whom the data is sent from Switzerland must commit to the principles of the Safe Harbor Agreement. The American providers Google and Webtrends in particular do this (see info column on the left).
Privacy Policy
From a legal perspective, the use of web analysis tools is therefore generally unobjectionable. However, it is advisable to make explicit reference to their use, how they work and how the data they collect is used in a privacy policy published on the relevant website. If data is transferred abroad, this should also be declared.
Ueli Grüter
Fair trading law
Fair trading law requires that web analyses are carried out in good faith. This also includes the principle of transparency. In practice, these two principles mean that website visitors must be explicitly informed about the analysis.
Privacy
Whether the Data Protection Act also applies to web analyses is questionable. This is because the Data Protection Act only applies to data that can be directly traced back to a person. As users generally only identify themselves with a randomly assigned IP address when surfing the internet, the data collected via web analytics cannot be assigned to an individual person. However, because providers are required by law to retain individual connection data for six months, there is still a latent risk of linking web analysis data to actual persons.
It is therefore advisable to comply with the principles of data protection law when using web analytics tools. In addition to the principle of good faith and the principle of transparency already mentioned in connection with fair trading law, these are the principles of proportionality and purpose limitation.
The principle of proportionality means that only data that is necessary and suitable for the specific web analysis may be collected. Data collection in advance is therefore not permitted from this point of view.
In the context of web analytics, purpose limitation means that the data collected may only be used for purposes that were previously communicated to visitors to the website or that they must assume based on the circumstances.
Data transfer abroad
With some web analysis tools, the data is not evaluated in Switzerland, but is sometimes even sent abroad directly via the browser. This is permissible if the foreign country in question also guarantees adequate data protection. This applies in particular to all EU member states. A US partner to whom the data is sent from Switzerland must commit to the principles of the Safe Harbor Agreement. The American providers Google and Webtrends in particular do this (see info column on the left).
Privacy Policy
From a legal perspective, the use of web analysis tools is therefore generally unobjectionable. However, it is advisable to make explicit reference to their use, how they work and how the data they collect is used in a privacy policy published on the relevant website. If data is transferred abroad, this should also be declared.
Ueli Grüter
Web analysis tools
Web analysis tools, such as Google Analytics and Webtrends, are programs that enable the collection and evaluation of information about the behaviour of visitors to websites and thus their optimization. As a rule, log file analysis on the web server or the integration of tags that send data via the browser is used to examine where visitors come from, which areas of the website they visit and how often which pages are viewed. Cookies are also used to recognize visitors.
