Introduction
Key provisions of platform
Comment


Introduction

According to a press release dated 15 February 2023 (available in German, French and Italian), the Federal Council adopted a dispatch along with a draft bill on the new Federal Act on Platforms for Electronic Communication in the Justice System. The draft bill takes into consideration the results of the consultation procedure, which ended on 26 February 2021. The federation and the cantons are to jointly set up and finance the digital communication platform. The cantons will also be allowed to use independent platforms. In order to ensure rapid adaptability and for the platforms to be able to stay up to date with future technical changes, the draft bill contains minimal regulations.

Key provisions of platform

Functions
The main functionality of the platforms is to receive documents from users and make them available to the addressees.(1) An electronic seal and timestamp will ensure the authenticity of the documents uploaded to the platform.(2) The platforms will issue confirmations of receipt, retrieval and non-collection.(3) The authorities will scan physically submitted documents and upload them to the platforms in electronic form, unless this is not possible for technical reasons.(4)

Unavailability
The draft bill provides that, if a platform is unavailable (eg, due to unplanned downtime or network disruptions), judicial deadlines will be extended, provided that the user has proof of such unavailability. As well as disruptions to the platform itself, other network disruptions on the internet will be taken into account.(5)

Data protection and data security
Data protection and data security are ensured by the requirement that:

  • data on the platforms must be retained and processed in Switzerland in accordance with Swiss law; and
  • third parties given access to the data must be subject to Swiss law and have their registered office or place of residence in Switzerland.(6)

In addition, operators of the various platforms are required to publish processing regulations in which they particularly specify the organisational and technical measures to prevent unauthorised data processing and regulate the automatic logging of data processing and data access.(7)

The Federal Council will regulate by ordinance the data security requirements for all platforms governed by the draft bill.(8) A draft of this ordinance is not yet available but as some of the documents on the platforms will contain highly sensitive data, the Federal Council will have to ensure that a high level of data security is met, and that the general protection goals (confidentiality, integrity, authenticity and traceability) are guaranteed at all times on the various platforms. As a possible base, the Federal Council suggests using the security specifications of the Information Security and Data Protection (ISDP) Concept of the National Cyber Security Centre (available in German, French and Italian). The IDSP concept is based on article 14d(1) of the Cyber Risks Ordinance of the Federation. According to this article, if a protection needs analysis discloses an increased need for protection, the administrative units in charge must, in addition to implementing the security directives on basic protection and based on a risk analysis, devise further security measures and document and implement them. The ISDP concept must contain a description of these security measures, as well as a description of their implementation for the internet technology systems that must be protected. It also must contain a specification of the residual risks that still exist after the implementation, along with an emergency concept to follow in case of emergency and as a catastrophe prevention to ensure the maintenance and restoration of the capacity to act in extraordinary situations.

The data security of the platforms will regularly be inspected by a supervisory authority.(9)

Comment

These are welcome changes to the status quo. The draft bill and the associated amendments to the procedural laws will boost electronic communications in legal proceedings. Although from a practical point of view it would have been preferable to only work with a single platform instead of multiple platforms on a cantonal and federal level, it is not surprising that this is not the case in view of the Swiss federal system.

For further information on this topic please contact Jürg Schneider, Lena Götzinger or Solweig Schurti at Walder Wyss by telephone (+41 58 658 58 58) or email ([email protected], [email protected] or ). The Walder Wyss website can be accessed at www.walderwyss.com.

Endnotes

(1) Article 22(1) of the draft bill.

(2) See article 22(2) of the draft bill.

(3) Article 22(4) of the draft bill.

(4) Article 29 of the draft bill.

(5) Article 26 of the draft bill.

(6) Article 27 of the draft bill.

(7) Article 28(1) of the draft bill.

(8) Article 28(3) of the draft bill.

(9) Article 28(2) of the draft bill.