Data protection regulations for advertising | HÄRTING Rechtsanwälte

Marketing has become increasingly important in recent years, with new technologies opening up a number of new ways to advertise products and reach a larger customer base. But how should companies handle the personal data of recipients that is required for advertising purposes? When is it appropriate to send personalised advertising and what aspects do companies need to consider?

In the following article, we provide a concise overview of the data protection regulations in Switzerland that must be observed when using various advertising media. We also draw comparisons with the situation in the European Union (EU) to give you a comprehensive insight into the topic. Join us in the multifaceted world of data protection in marketing and find out how companies can skilfully strike a balance between effective advertising and data protection.

7. June 2023

Regulation in Switzerland

Anyone wishing to distribute advertising in Switzerland must in principle comply with three key laws. For standard marketing by post, telephone or e-mail, both the Data Protection Act of 19 June 1992 (DSG; SR 235.1) and the Federal Act against Unfair Competition of 19 December 1986 (UWG; SR 241) must be observed. The Telecommunications Act of 30 April 1997 (TCA; SR 784.10) is also relevant for tracking by means of cookies.

Advertising by post or telephone

Personally addressed advertising by post or telephone is one of the classic methods of reaching customers and advertising products. Over time, however, the requirements for the legality of this type of advertising have become stricter. Nowadays, it is only data protection compliant to send personally addressed advertising by post or telephone under certain conditions. To do this, the person concerned must have made both their address and their telephone number available to the public and not explicitly prohibited the use of this data for advertising purposes.

Addresses and telephone numbers are publicly accessible if they are listed in the telephone directory, in a business directory, on the Internet or in directories of associations.

A simple way for consumers to prohibit the use of their data for advertising purposes is to make an entry in the so-called Robinson list. This is provided by the Swiss Direct Marketing Association (SDV) and enables consumers to stop receiving addressed advertising mailings sent by post. However, it should be noted that only members of the SDV are actually obliged to honour the entries in the Robinson list. If your company is not a member of the SDV, there is no legal way for the person concerned to protect their address via the Robinson list. However, the use of addresses for advertising purposes can also be generally prohibited by the recipient of a mailing returning it with a note stating that the mailing for advertising purposes is prohibited. These instructions must be observed.

In principle, the same applies to telemarketing: if the person concerned has made their telephone number public and has not prohibited the use of their telephone number for advertising purposes, telemarketing is permitted. A prohibition for advertising purposes can be entered in the telephone directory by means of a so-called star entry. With a star entry in the telephone directory, the person indicates that they do not wish to receive advertising. If an advertiser disregards a star entry, they are generally acting unfairly in accordance with Art. 3 Para. 1 UWG. However, consumers cannot completely protect themselves from advertising calls despite the star rating. For example, advertising calls are permitted despite a star rating if the person called has a business relationship with the company, namely if they are listed in the customer file. Secondly, advertising calls are permitted despite the starred entry if the person concerned has at some point given their consent to this in some way, namely through the conditions of participation in a competition.

Advertising by e-mail

If the advertising is sent electronically, Art. 3 para. 1 lit. o UWG must be observed. The provisions for the electronic sending of mass advertising apply to legal entities as well as natural persons. Mass advertising is permitted provided that the consumer’s consent has been obtained in advance (“opt-in principle”), the correct sender is stated and the option to refuse or unsubscribe is indicated in a simple manner. With regard to a person’s consent, it should be noted that this must be given by the person themselves and can be revoked at any time. The data subject must also be sufficiently informed before giving consent. The actual consent can ultimately be given by ticking a box.

Without the consent of the person concerned, the sending of electronic mass advertising is only permitted if a business relationship already exists with the recipient, in the context of which the sender has received the relevant contact information, and the mass advertising relates to similar offers. Nevertheless, it is essential to give the recipient the opportunity to reject the electronic advertising based on the “opt-out principle”. An unsubscribe link is sufficient for this.

Unfair mass mailings (spam) are subject to special provisions in accordance with Art. 83 TCA. Telecommunications providers are obliged to protect customers from spam and are therefore authorised to suppress such mailings. This obligation even goes so far as to allow connections of senders of unfair mass advertising to be blocked. However, advertising calls or addressed mailings are not covered by this legal provision. This only applies to e-mail, SMS, fax or other electronic communication channels.

Regulation in the European Union

The sending of electronic advertising emails to addressees in the EU is only permitted if they are in a client or contractor relationship with the advertising company or have consented to receiving them. This regulation is contained in Art. 13 of the Data Protection Directive for Electronic Communications of the European Parliament and of the Council of 12 July 2002.

Cookie banner

In connection with the data protection aspects of advertising, it is essential to address the issue of cookie banners. Cookie banners play a crucial role in the collection of data and the personalisation of websites, which ultimately has a decisive impact on marketing.

In the EU, the ePrivacy Directive stipulates that cookies that are not strictly necessary may only be used if the website user has given their consent after prior information (“opt-in principle”). Consent is obtained with the help of a cookie banner that indicates the use of cookies.

The new Swiss Federal Act on Data Protection of 25 September 2020 (Data Protection Act, nDSG; AS 2022 491, entry into force on 01.09.2023) has not adopted the existing provisions of the EU Cookie Directive and does not provide for a mandatory cookie banner.

The Telecommunications Act, on the other hand, provides for a regulation for cookies in Art. 45c, according to which the processing of data on third-party devices by means of telecommunications transmission is only permitted if the user has been informed about the processing and its purpose and has been informed of the possibility of rejecting this collection.

As data controllers, companies must create the necessary transparency by means of general terms and conditions and a privacy policy, which HÄRTING can assist you with. We would be happy to create a privacy policy and corresponding GTCs customised to your needs.

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