The SDV Board on the preliminary draft of the new data protection law

What is it about?

The Federal Data Protection Act (FADP) will be adapted to the changed technological and social conditions and, in particular, the transparency of data processing will be improved and the data subjects' self-determination over their data will be strengthened.

The total revision allows Switzerland to ratify the Council of Europe's revised data protection convention ETS 108 and to adopt Directive (EU) 680/2016 on data protection in the area of law enforcement, which it is obliged to do under the Schengen Agreement. This rapprochement and the ratification of the revised convention ETS 108 are central to ensuring that the EU continues to recognize Switzerland as a third country with an adequate level of data protection and that cross-border data transfers remain possible in the future.

As a trade association, the SDV is actively involved in the consultations on the Data Protection Act. Depending on the form of the data protection provisions that will apply in the future, these will have a significant negative impact on advertising activities and in the support of existing customers and buyers. Proposals for implementation must therefore already be made in the response to the consultation.

The position of the SDV Swiss Dialog Marketing Association on the preliminary draft of the Federal Office (VE-DSG)

As a trade association, the SDV is actively involved in the consultations on the DSG. Depending on the design of the data protection provisions that will apply in the future, these will have a significant negative impact on advertising activities for the support of existing customers and buyers. Proposals for implementation must already be made in the response to the consultation.

1 The SDV supports a modernization of the Swiss data protection law. The aim is to ensure mutual recognition of the equivalence and adequacy of data protection levels by implementing the obligations under international law arising from the Council of Europe's modernized data protection convention.

2. the SDV wants to work with other business associations to ensure that in those areas where adjustments to the EU GDPR and the Council of Europe's modernized data protection convention are not necessary - or where there is room for implementation - no new regulations are introduced or pragmatic and workable solutions are chosen.

The SDV is strictly opposed to any "Swiss Finish" in the sense of a tightening beyond this minimum standard. Any planned change / innovation that leads to such a tightening and thus to a competitive and locational disadvantage for data processors in Switzerland must be dispensed with.

4 The companies in the advertising industry have not only a legal, but above all an economic and macroeconomic interest in a business-friendly and as unbureaucratic as possible design of the revised DPA provisions.

Cost-increasing regulations which increase the administrative costs and efforts and thus the costs of the advertising activities concerned are only acceptable if they are necessary due to the mandatory requirements of the Council of Europe's data protection convention. We categorically reject unnecessary regulations that restrict advertising activities or even make them impossible, even in comparison to the current situation.

6 The possibility of smooth data exchange with neighboring European countries is of great importance to the Swiss dialog and direct marketing industry. Market access must be ensured and the revision must not lead to new location disadvantages or trade barriers.

The SDV also sees the overall economic significance and importance of the possibilities of data processing for advertising purposes and the trust in this data processing.

8. the sanctions system envisaged in the VE-DSG via an expansion of criminal law provisions and severe sanctions against natural persons in the data-processing companies poses a serious threat to Switzerland as a business location.

9 We see an additional threat to the innovative strength and innovative potential of the Digital Economy in Switzerland and, in particular, of Swiss SMEs. Risk assessment in the context of new innovations in the "Data Economy" would always have to be carried out in the light of possible criminal prosecution of the employees of corresponding companies. This is likely to have a deterrent effect that should not be underestimated. At the same time, this system of sanctions in no way ensures the central recognition of the adequacy of the Swiss level of data protection. Corresponding sanctions would then be practically unenforceable against data processors from abroad. These companies would thus in fact not be affected by the new threats of sanctions and would have a clear advantage over Swiss companies. The SDV therefore strictly rejects this sanction system.

10. self-regulatory measures are preferable to bureaucratic legislation

... and why?

For smaller and innovative companies in particular, it will be difficult to gauge the requirements of such a stricter law and to align all business processes accordingly. The regulations introduce numerous new information and documentation obligations for companies. If they violate the regulations, they will be threatened with severe sanctions, and this applies to the natural, data-processing persons in the companies.

In the transformation of traditional business models toward greater customer proximity and an individual approach, Switzerland must not subject itself to too many self-restrictions. Innovations would then take place abroad. Modern data protection should strike a balance between the self-determination of the citizens concerned and digital progress, not make digital progress in Switzerland impossible. Therefore ...

... as little as possible and only as much as necessary!

Notice: A background article on the topic will appear in the next but one Advertising Week (issue 6/17 of March 24, 2017).