No special law for social networks
Bern, 09.10.2013 - Social networks such as Twitter, Facebook and blogs present legislation with new challenges. However, these cannot be overcome by a separate special law. This is the conclusion reached by a Federal Council report in response to the Amherd postulate referred by the National Council in relation to the legal situation relating to social media. A detailed examination is now being carried out in various areas to determine whether new regulations are needed. This relates to the responsibility of platform operators and providers in civil law and to their obligations under telecommunications legislation.
The Federal Council report, entitled "Legal Basis for Social Media", indicates that on the basis of experience to date there appear to be no major gaps in Swiss law. The general rules enshrined in existing legislation (e.g. the Data Protection Act or the Civil Code) apply to social networks. These regulations, judiciously applied, provide a reasonable solution to most problems the platforms create or might create for those involved and for the general public. However, the Federal Council notes that it is uncertain whether legitimate claims can actually be enforced in practice. The Swiss authorities' control options are limited here, because foreign operations are often involved.
Obligations of platform operators and providers
Anyone publishing illegal content on social media can be made legally responsible. The report, however, considers the liability of service providers who provide access to a network (e.g. operators of social media platforms and internet providers) to be less clear. In this respect, precisely from the viewpoint of civil law, there are unanswered questions, as the Federal Court also noted. The Federal Council is therefore instructing the Federal Department of Justice and Police (FDJP) to clarify whether legislative action is required in relation to the civil liability of internet service providers. If this is the case, the FDJP will draw up a draft consultation paper by the end of 2015.
The regulations of the telecommunications legislation which will apply to social media platforms in future will also be examined. To date, they are only exceptionally subject to the provisions of the Telecommunications Act (e.g. registration obligation, transparent pricing, combating spam). The Federal Department of the Environment, Transport, Energy and Communications (DETEC) will investigate these issues in the context of a future revision of the Telecommunications Act (TCA).
Other specific statutory regulations
Other legislation may have to be adapted in the course of time. For example, the report identifies several problems associated with social networks in relation to data protection legislation. They concern users' lack of control over their data, such as the creation of personality profiles or the 'right to be forgotten' on the internet. A broad-based group of experts under the auspices of the FDJP is currently analysing all the data protection legislation and its enforcement measures and is also dealing with issues which relate to the social networks.
In addition, investigations are currently in progress to determine whether there is a need for a new legal basis at the federal level for the protection of children and young people. This analysis is being undertaken within the framework of the national "Youth and Media" programme headed by the Federal Social Insurance Office (FSIO).
The on-going activities in the areas of data protection, protection of young people and telecommunications legislation do not concern social media exclusively. However, the activities of the various bodies should produce a coherent overall picture in this area too. The Federal Council will monitor the various activities and will adopt a new position from the perspective of satisfactory regulation of social networks by the end of 2016.
Information and awareness-raising
Legal regulations alone are not sufficient to address the risks and opportunities of social networking. There is also a need to inform and raise the awareness of all stakeholders. The Federal Council therefore notes that the measures taken so far to promote awareness of the problem must be strengthened. This also applies to the development of the media skills of the population and especially of children.
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