E-marketing yes, spam no

Fairness Act Since April, spamming has been prohibited by law in Switzerland. For marketing and advertising experts, the question arises as to how commercial e-mails can be sent in compliance with the new regulation. "Spam" or "spamming" is now generally defined as the mass sending of e-mails for commercial purposes, but without the express wish of the recipient or without a prior business relationship between the sender and the recipient.The term "spam" comes from the USA and originates from the Spam ("Spiced Ham") brand of the American food manufacturer Hormel Foods, under which it sells canned meat (www.spam.com) and even registered a corresponding trademark. The term "spam" became a term for unsolicited e-mails via a sketch by the British comedy troupe Monty Python. In this sketch (http://video.google.com/videoplay?docid=5627694446211716271), a group of Vikings sing loudly in praise of spam, making conversation in a small restaurant impossible; an effect that spam emails also regularly have.     
On the other hand, the sending of commercial e-mails as part of e-marketing complies with the relevant provisions of the Unfair Competition Act (UWG), the Data Protection Act (DSG) and the principles of the Commission on Fair Trading (www.lauterkeit.ch).
The new anti-spam articleThe most important legal basis for the legal sending of commercial e-mails is Article 3 lit. o UWG, which has been in force since April 1, 2007. The most important legal provision is Article 3 lit. o UWG, which has been in force since April 1, 2007: Anyone who sends mass advertising by telecommunication without a direct connection to the requested content or initiates such mailings and fails to obtain the customer's prior consent, to indicate the correct sender or to point out an easy and free opt-out option is acting unfairly; anyone who receives contact information from customers when selling goods, works or services and points out the opt-out option is not acting unfairly if they send these customers mass advertising for their own similar goods, works or services without their consent.
The principle of fairness under fair trading law prohibits sending commercial emails to people who explicitly do not wish to receive them or with whom there is no business relationship. With the new anti-spam article, the so-called opt-in principle now also applies by law in Switzerland.
The opt-in principle now stipulated in Article 3 lit. o UWG means that no commercial e-mails may be sent to recipients who have not consented to receiving such e-mails or with whom a business relationship did not already exist before the e-mails were sent; in the latter case, the sending of commercial e-mails is only permitted if they do not expressly refuse to receive commercial e-mails.
Recipients of commercial e-mails who have given their consent and those with whom a business relationship exists must also always be given the opportunity to refuse to receive commercial e-mails in the future (so-called opt-out principle).
Observe national lawsFurthermore, the principle of transparency requires that commercial e-mails are recognizable as such and that their sender is visible and easily identifiable. If commercial e-mails are sent to the EU or are presumably received or read there, the corresponding legal principles of the EU or their implementation in the corresponding national law must also be observed. Essentially, the same principles apply as are now known under Swiss law.
E-tools on communication law
(www.weka.ch, www.kommunikationsrecht.ch).In the event of violations
Ueli Grüter, LL.M., is a lawyer (www.gsplaw.ch) and university lecturer (www.fhz.ch) as well as the editor of two practical handbooks.
 

 
 
 
Checklist for sending commercial emails 
Due to the legal situation, the sending of commercial
e-mails in Switzerland, as in the EU, the following points must be observed:
Commercial e-mails may only be sent to addressees with whom either a customer relationship already exists or who explicitly request commercial communication by e-mail (opt-in principle);
Existing customers or addressees who have explicitly consented to receiving commercial emails must also be given the opportunity at any time to refuse commercial communication by email in the future (opt-out principle);
If e-mail addresses are collected, the purpose of use must be communicated to the owners of the addresses and the addresses may only be used for the stated purpose;
Customers must have the option of refusing e-mail advertising when their e-mail addresses are entered;
E-mail addresses may not be passed on to third parties without the consent of the addressees;
Commercial e-mails must already be recognizable as such in the subject line;
In the case of commercial e-mails, the sender must be clearly visible and readily identifiable.