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LEGISLATION[Under Swiss law, no provision addresses specifically the liability of ISPs. Activities of ISPs must be assessed according to provisions generally applicable to criminal and civil liability. The provisions which are potentially relevant for ISPs are listed hereinafter.] Swiss Criminal Code (federal classified compilation 311.0) [English Version] [Articles 173 et seq. – Offence against personal honor; Article 259 – Public incitement to commit a felony or act of violence; Article 261bis – Racial discrimination; Article 25 – Complicity; Article 28 – Criminal liability of the media] Swiss Civil Code (federal classified compilation 210.0) [English Version] [Articles 28 et seq. – Protection of legal personality against infringements] Swiss Code of Obligations (federal classified compilation 220.0) [English Version] [Articles 41 et seq. – Obligations in torts; Article 50 – Multiple liable parties] Swiss Federal Act on Copyright and Related Rights (federal classified compilation 231.1) [English Version] [Article 62 – Civil actions (including references to the Swiss Code of Obligations); Articles 67 et seq. – Criminal provisions] Swiss Federal Act on the Protection of Trademarks and Geographical Indications (federal classified compilation 232.11) [Article 55 – Civil actions (including references to the Swiss Code of Obligations); Articles 61 et seq. – Criminal provisions] Swiss Federal Act against Unfair Competition (federal classified compilation 241.0) [Article 9 et seq. – Civil actions (including references to the Swiss Code of Obligations); Articles 23 et seq. – Criminal provisions]

BILLS AND LEGISLATIVE PROPOSALSCybercrime project (abandoned), Federal Department of Justice and Police [Between 2001 and 2008, the federal government examined the opportunity to propose new rules governing the criminal liability of ISPs. However, it came to the conclusion that the current regulatory framework is appropriate to efficiently fight against criminal activities over the Internet. In addition, new rules would face the risk of being too rapidly outdated given the fast development of technologies in this sector. Also, the creation of immunities may inadequately serve the interests of ISPs by freeing them excessively from their liability.] AGUR 12, Federal Department of Justice and Police & Federal Institute of Intellectual Property [AGUR 12 is a working group created in 2012 by the Federal Councillor Simonetta Sommaruga, Head of the Swiss Federal Department of Justice and Police, and under the supervision of the Director General of the Swiss Federal Institute of Intellectual Property, Roland Grossenbacher. The working group is responsible for identifying the possibilities that exist for adapting copyright law to technical developments. The group recently issued its report and recommended, among others, the adoption of a takedown procedure (if possible through self-regulation) as well as of a system to block access via ISPs in serious copyright infringement cases (see link to proposals here).]

DECISIONS

Superior CourtsFederal Supreme Court, Civil, Tribune de Genève case, 5A_792/2011, January 14, 2013[infringement of personality rights, civil liability for blog hosting] [In the so-called Tribune de Genève case, the Swiss Supreme Court held that a newspaper is civilly liable (Article 28 of the Swiss civil code) when it hosts on its website the blog of a user whose content infringes on the personality rights of a third party. According to the Supreme Court, this liability is justified by the fact that the newspaper contributes to the diffusion of the infringing content to the public and a large circle of readers. The entity hosting the blog can be ordered to eliminate infringing contents on personality rights. Furthermore: (1) The Swiss Supreme Court explicitly clarified that the liability incurred by the infringement of personality rights is not related to the control over the infringing content. Put differently, since this type of liability does not require any fault (wilful intent or negligence), the question whether the ISP has control over the content posted in the blog or not is irrelevant. (2) The Swiss Supreme Court stated that ISPs will not face increasing actions for compensation as a result of this judgment because such actions typically require the demonstration of fault. (3) The Swiss Supreme Court considered that, in any event, serious consequences for ISPs that would result from the application of the existing law should not be fixed by the judiciary but by the legislature.

CONTRIBUTORSAdrien AlberiniEmail: adrien.alberini1 at gmail.com[personal page]

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