Revision of the Swiss Federal Act on Data Protection: Lawmakers establish first cornerstones of the new Data Protection Act
After the Swiss Council of States also discussed the draft of the new Swiss Federal Act on Data Protection (FADP) at the end of December 2019, the FADP revision is taking concrete form. The new FADP will contain provisions on criminal sanctions against natural persons, the extension of the obligation to provide information, the obligation to maintain a processing directory or the implementation of measures relating to privacy-by-design and privacy-by-default, provided that the draft legislation does not unexpectedly fail. A further controversial point is, for example, the scope and the requirement of express consent for profiling. In addition, several regulations in connection with credit assessments are still open. This concerns the obligation to provide information and the right of access, but also the existence of a justification for credit assessments. The solutions to the controversial provisions are still to be discussed in the two chambers of the Swiss Parliament.
At the end of December 2016, the Federal Council opened the consultation process on the preliminary draft for a total revision of the FADP with the main aim of bringing Swiss data protection law in line with EU standards and adapting it to the Council of Europe’s Data Protection Convention. In September 2017, the Swiss Federal Council adopted the draft law and the accompanying dispatch. One of the most noteworthy points was the proposal to introduce criminal sanctions against natural persons up to a maximum amount of CHF 250’000 instead of administrative sanctions against legal persons as under EU law. Moreover, the draft adopted numerous provisions of the EU General Data Protection Regulation (GDPR), such as the extended information obligations, the obligations to keep a register of data processing operations and to carry out data protection impact assessments.
Nevertheless, in September 2019 the Swiss National Council decided on numerous deviations from the Federal Council’s draft. In December 2019, the Swiss Council of States also decided to make further amendments to the proposals of the Federal Council and the National Council. However, the decision of the Council of States already indicates which provisions will be incorporated in the new FADP in this form and which points are still controversial. A comparison between the current legal situation, the draft of the Federal Council and the drafts of the National Council and the Council of States is available here in table form. For settling the differences, the National Council and the Council of States will need to discuss the contentious provisions in the procedure for reconciling of the two chambers.
Find the comparison here: