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The nature of data protection measures inherently requires that when data is being moved from one state to another, each jurisdiction must have equivalent protections and sanctions. Switzerland and the European Union have similar protections in place to protect and define the limits of data protection. While it can be argued that data protection in the European Union and Switzerland are fundamental rights, an equivalent protection does not currently exist in the United States.
This publication will thus compare the Swiss legal framework for protecting data with the systems in the European Union and the United States.
This newsletter is the last of four publications relating to data protection in Switzerland. The first publication looked at the various laws and ordinances covering the protection of data in Switzerland (status as at mid-2015), the second publication looked at banking secrecy, a significant area in which the protection of data is enshrined and the third newsletter, published in early 2017, highlighted particular challenges in today’s society with respect to the protection of one’s data and the way in which the Swiss legal system addresses such concerns. The three earlier newsletters are available on our firm’s website under Publications.
While the European Union (the “EU”) and Swiss laws and regulations regarding data protection show distinctive similarities, the United States (the “US” system is very different by virtue of such protection existing in a number of different laws, both at state and federal levels.
This newsletter presents a few key aspects of data protection in the three jurisdictions. Such a comparison allows the reader to appreciate the similarities and differences between the three frameworks, as well as providing an overview of how data is exchanged between member states of the EU, Switzerland and the US.
The principle legislation governing data protection in Switzerland is the Swiss Federal Act on Data Protection of 19 June 1992 (“Swiss Data Protection Act”) and the accompanying Ordinance to the Federal Act on Data Protection of 14 June 1993. Additionally, Articles 13(1) and (2) of the Federal Constitution of the Swiss Confederation of 19 April
1994 states that all persons have the right to privacy in their private life, family life, and in respect of their mail and telecommunications as well as giving persons the right to be protected against the misuse of their personal data.
There are also a number of obligations placed on professionals to ensure professional secrecy vis-à-vis their clients, as set out in detail in the first and second publications. [1]
In respect of the Data Protection Act, in December 2016 a draft bill was published to reform the provisions in that Act. Where appropriate, the proposed amendments will be mentioned throughout this newsletter.