Introduction

Unlike in the European Union, internet service providers' liability for storing and enabling access to copyright-infringing content is not regulated by Swiss statutory law. This creates uncertainties for internet service providers regarding their liability should their users access or make available copyright-infringing content. Likewise, copyright owners face difficulties when seeking redress for infringement.

This situation is under regular review and Switzerland has taken several recent initiatives.

Revision of Copyright Act

The Federal Council published the preliminary draft of the revised Copyright Act for consultation on December 11 2015. With regard to copyright infringement online, the draft focuses mainly on involving internet service providers, even if they are not the ones primarily infringing copyright.

According to the draft act, hosting providers must remove infringing content from their servers on notice and provide the identity of the content provider. The hosting provider must notify the content provider of this. Access providers must block access to infringing content on the order of the Federal Institute of Intellectual Property if the content is hosted by a provider located abroad or at an unknown location. The content provider can oppose the takedown or blocking, in which case the content must be reloaded or made accessible again.

In exchange for these new obligations, the draft proposes that internet service providers be exempt from liability for hosting or permitting access to copyright-infringing content.

Roundtable

Following the initiative of the Swiss-US Cooperation Forum on Trade and Investment, the Federal Council organised a roundtable in order to enhance protection until the revised act enters into force. The roundtable acknowledged self-regulation of hosting providers and the difficulties faced by access providers in blocking access without proper legal basis.

Federal Council's report

In December 2015 the Federal Council published a report on liability under civil law, concluding that new provisions on liability for internet service providers are unnecessary. Given the speed of the technological evolution in digital communication, the council found it improper to introduce exemptions for certain providers or a statutory takedown notice obligation, fearing that it may prompt smaller providers to quickly remove content or bar access without proper investigation – which would be tantamount to private censorship.

The report's main focus concerns the right to have infringing content removed. The council based its findings mainly on a January 2013 Federal Supreme Court decision in which the court found that the editor of a newspaper had to remove the content of a blog that it had published on its website. The decision was based on personality rights, which provide that court action can be introduced against anyone involved in the infringement – irrespective of whether such person is found to be at fault – to stop or prevent such infringement. The council recognised that the decision has been criticised mainly because it remains very broad (if not too broad) in respect of the persons against whom an action can be introduced. Nevertheless, the council found that the courts must adhere to the principle of adequacy when issuing takedown orders and that this principle is sufficient to adequately contain the circle of potential defendants. Further, the council also found that a court must consider adequate causation, meaning that an action must be dismissed if the connection to the infringement is remote and negligible or if the provider cannot reasonably prevent or stop the infringement. The council concluded that no specific legal regulation is required.

The report also considered the more difficult topic of liability for damages, where there is no guidance from a Federal Supreme Court precedent.

The council welcomed the Swiss Internet Association's self-regulation measures, which establish a notice and takedown procedure and terms and conditions of major social media sites (which also provide such a notice and takedown procedure).

In the absence of a notice, the council was of the view that removal of infringing content on the internet service providers' own initiative can be expected only if particular circumstances require it, such as the occurrence of an earlier infringement or if an infringement must be expected (eg, the European Court of Human Rights decision in Delfi AS/Estland).

The council saw no compelling reason to introduce new legislation dealing with the liability of internet service providers or their exemption from liability. It therefore defered to the courts, which will have to define the conditions triggering liability for internet service providers on a case-by-case basis by applying the existing legal framework.

Although a case-by-case basis might have the advantage of being the most adequate approach in a particular case, legal uncertainty remains for internet service providers. This uncertainty could put Swiss internet service providers at a competitive disadvantage when compared to jurisdictions where there is more certainty. Further, the remaining uncertainty will likely prompt internet service providers to remain cautious and to immediately remove content on receipt of notice alleging infringement, thereby leading to the private censorship that the council was trying to avoid.

Comment

Regulation regarding the liability of internet service providers is lacking in Switzerland. When the revised Copyright Act enters into force – a time-consuming process that remains some way off – it will be a step in the right direction. However, given that the Swiss legal framework for infringing content predates the digital revolution, it might be worth considering whether a more courageous approach would be better.

For further information on this topic please contact David F Känzig or Katia Favre at Thouvenin Rechtsanwälte by telephone (+41 44 421 45 45) or email (d.kaenzig@thouvenin.com or k.favre@thouvenin.com). The Thouvenin Rechtsanwälte website can be accessed at www.thouvenin.com.

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