According to the latest decisions of the Federal Supreme Court (1B_185/2016, 1B_186/2016 and 1B_188/2016), Facebook Switzerland Sàrl does not have to provide the prosecutor of the Canton of Vaud with user or content data because the data is processed by Facebook Ireland Ltd.

Facts

A journalist filed a criminal complaint for slander, defamation and insult because he was called anti-Semitic on a public Facebook account held under a pseudonym.

The prosecutor requested Facebook Switzerland to provide user and content data, log files and IP addresses of the Facebook account. Facebook Switzerland refused, stating that it did not have access to such data because it was exclusively held by Facebook Ireland.

The court held that the Lawful Interception Act is not applicable to providers of social media platforms, and therefore Facebook does not have to provide user and content data based on lawful interception.

The court reviewed whether Facebook Switzerland had to provide the requested data based on Article 265 of the Criminal Procedure Code, according to which the holder of items or assets to be seized must provide them. The court concluded that only persons or entities with legal and actual control over the data can be requested to hand it over. In this case, the entity controlling or having access to the data requested by the prosecutor was Facebook Ireland, the entity contracting with its users. Hence, the prosecutor should have addressed the request to Facebook Ireland by way of legal assistance in criminal law matters, not Facebook Switzerland.

Lawful Interception Act

However, it is likely that in the near future Facebook Ireland will have to provide the requested data based on the Lawful Interception Act, which has just been revised, although the amendments are not yet in force. According to the latest revision, the act will be applicable to providers of over-the-top services (eg, providers of social media platforms). Based on the general principle of territoriality, the act is applicable to all actions taking place in Switzerland, irrespective of the registered seat of the service provider. Thus, it is likely that providers of social media platforms will have to cooperate with the surveillance authorities in a form that will be defined in the Ordinance on Lawful Interception, which has yet to be implemented.

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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