Unsolicited advertising calls, especially from foreign call centers, have been a major nuisance for Swiss consumers in recent years. The partial revision of the Swiss Federal Telecommunication Act (TCA) and the related ordinances, inter alia, provides for duties of telecommunication service providers to take measures to combat unfair mass advertising (article 45a TCA). The following specific provisions against unfair telemarketing practices were enacted as an amendment to the Swiss Federal Act against Unfair Competition (UCA).
1. Stricter Rules on Telemarketing
In Switzerland, anyone may opt out of unsolicited advertising calls by having their telephone number registered with an asterisk in the telephone directory. It is now specified that telephone marketing to such individuals is unfair, unless there is a pre-existing business relationship (article 3(1)(u) UCA). Customers without a directory entry, e.g. for mobile telephone numbers, are to be treated like individuals with an asterisk entry (i.e. the opt-out is presumed).
In recent years, call centers regularly conducted telemarketing in Switzerland without displaying their telephone numbers, or by displaying numbers of third parties to conceal their identity (so-called spoofing). The new article 3(1)(v) UCA seeks to prevent this practice and prohibits to make advertising calls without displaying a telephone number which (i) is registered in the telephone directory and (ii) which the caller is authorized to use.
It is now also prohibited to use information obtained through one of the unfair telemarketing practices indicated above (art 3(1)(w) UCA). This new provision aims to prevent the collection and commercialization of Swiss consumers' data by foreign call centers – which may not fall into the jurisdiction of Swiss prosecution authorities – that are eventually used by Swiss companies to obtain a targeted access to Swiss consumers.
2. Possibility to Revoke or Block Domain Names and Telephone Numbers
Most relevant for the prevention of unfair telemarketing and other unfair advertising practices are the new procedural provisions on the blocking and revocation of domain names and telephone numbers by Swiss criminal prosecution authorities or criminal courts. Such measures can now be imposed, either as a permanent or interim injunction, to prevent any future offence following a (suspected) criminal violation of article 3 UCA (not only in the context of telemarketing), regardless of evidence of the culpability of a specific person (article 26a UCA). Notably, the measures are also available to combat criminal violations of the Swiss Federal Ordinance on Price Declaration (e.g. if a website with a Swiss top-level domain only indicates prices in Euro).
Revocation measures can only be ordered against second-level domain names that fall into the jurisdiction of Swiss authorities. A revocation order must be implemented by the competent Swiss registry (currently SWITCH for ".ch" and Federal Office of Communications for ".swiss").
An order for revocation or blocking of call numbers (mobile or fixed network services) must be implemented by the competent issuing telecommunication service provider.
This new procedural provision is an important step in the prevention of unfair online practices directed to Swiss consumers. Still, these measures cannot be applied to websites under a foreign top-level domain targeting Swiss consumers. In this respect, since geo-blocking is currently not prohibited in Switzerland – geo-blocking is prohibited in the EU countries since December 2018 –, advertisers can continue to offer Swiss consumers their goods and services on different (and potentially unfair) terms than those offered to customers in the EU. This and other legal challenges are still ahead.
Both the revised provisions of the Telecommunication Act and of the Act against Unfair Competition will come into force on 1st January 2021.
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