Significant changes to the Swiss Data Protection Act (DPA) have come into force on September 1, 2023. The revised legislation aims to strengthen the protection of personal data and increase the requirements for companies and organizations - a change that is highly relevant, especially with regard to personalized, data-driven marketing. In this blog post, we take a look at the most important changes and what they mean for companies. With our practical checklist for download, you can make your company fit for a data protection-compliant future.
OVERVIEW
- The FADP entered into force on September 1, 2023, replacing the previous law from 1992, with no grace period for data protection compliance.
- Consent not required for data collection/processing under all circumstances.
- Applies to natural persons (no longer to legal persons) and commercial and noncommercial entities that process the data of Swiss citizens.
- Entities are responsible for compliant data processing even if they use third parties (like vendors) to do it.
All processors must take reasonable organizational and technical measures to ensure data privacy and security.
Applies to data in both physical and electronic files.
Extraterritorial law, entities processing personal data do not have to be based in Switzerland.
Prohibits transfers of personal data from Switzerland to countries with which they do not have an adequacy agreement unless explicit user consent has been obtained from data subjects.
Consent Requirements
Unlike the GDPR, the FADP allows entities to process personal data without explicit consent unless the processing meets certain criteria:
- processing of sensitive personal data
- processing used in high-risk profiling by a private person
- processing used for profiling by a federal body (government)
- data transfers to third countries where there is not adequate data protection
The FADP does allow for other legal bases for processing besides consent (like the law or overriding public interest), but fewer than the GDPR does. When consent is required, it must be obtained before or at the point of data collection. Like the GDPR, user consent under the FADP must be granular, informed, and voluntary.
A consent management platform enables compliant user notification, e.g. populating a privacy policy page, as well as collecting and storing compliant consent. Multiple configurations can be used with geolocation to ensure compliance with multiple regulations with different requirements, like the GDPR and FADP, depending on user location.
Notification Requirements
Data subjects must be informed at all times prior to data collection, even if consent is not required for the intended data processing.
Companies need to clearly communicate the following information to users, e.g. in a privacy policy page on the website. These are the same notification criteria required for consent to be valid:
- identity of the data controller, whether the company or a third-party
- contact details for the data controller
- identity of the data recipient and any other parties involved with the data file
- recipient country if the data will be transferred cross-boder
- purpose(s) of data collection and use
- what categories of data are collected, if relevant
- means of data collection, if relevant
- the legal basis for processing, if needed
- users’ rights regarding their personal data under the FADP, including the right to refuse or withdraw consent
Data Subjects’ Rights
In principle, a person has the following rights:
- Right of access: right to request information on whether one’s personal data is being processed. No one can waive the right to information in advance.
- Data portability: right to have data issued in a common electronic format or data transfer.
- Right to rectification and deletion
Checklist for FADP Compliance
- Create privacy statements, like a privacy policy page on the website, or update existing ones and ensure they are customized for your business, users, processing purposes, and the data you
process.- Data subjects must always be notified regarding processing even when consent is not required.
- A consent management platform enables customizing and populating your privacy policy, as well as keeping it updated.
- Ensure notification information includes with which countries personal data is shared.
- If there is no adequacy agreement with those countries, make that clear and get explicit consent for data sharing.
- Obtain and securely store user consent when required, e.g. for sensitive personal data processing.
- Create or update internal data processing guidelines and ensure they are well communicated.
- Set up and maintain an internal registry of data processing activities.
- Implement a process to enable efficient receipt, acknowledgement, and response to data subjects’ exercising their rights, e.g. requests for copies of personal data or for correction or deletion.
- Ensure data is portable in an accessible format, e.g. printout or common electronic format.
- Implement a data protection impact assessment, especially if the organization extensively processes sensitive data.
Implement a process for data breaches, including prompt notification of the FDPIC and data subjects if needed. Include third parties that access or process data as well.
Review and update contracts with Data Controller (like vendors) to ensure reasonable requirements for security and data privacy are met. (Though legal responsibility lies with the first
party.)Maintain data only for as long as necessary under the stated notification, and for the stated purpose of processing. Delete or anonymize it as soon as it is no longer required for that purpose.
Appoint a data protection officer who liaises with users and the FDPIC, and administers policies and processes, if required for your company.
Consult with qualified legal counsel regarding your organization’s responsibilities under the FADP and how to fulfill them. Webrepublic does not provide legal advice but only information for educational purposes.
