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Digital content and IP issues
Are websites and any other digital content required to display certain legal notices or other information in your jurisdiction?
Yes, websites and other digital content are required to do so. In accordance with the Federal Law against Unfair Competition, anyone offering goods, work or services using electronic commerce must:
- indicate clearly and in full its identity (company name) and contact address (postal and email address);
- indicate the various technical steps resulting in the conclusion of a contract;
- provide the appropriate technical tools making it possible to detect and correct entry errors before sending an order; and
- immediately confirm the customer’s order by email.
A simple contact form is not enough to meet these requirements.
Further, for goods it is necessary to indicate the actual price to be paid in Swiss francs, including non-optional supplements of any kind.
Liability for content
What rules govern liability for online or other digital content that is defamatory or infringes another party’s IP rights?
Under Swiss civil law, such liability can be divided into three categories: contractual liability, general non-contractual liability and special statutory liability. Such liability is governed by the Swiss Civil Code (Articles 27 and following), the Swiss Code of Obligations (Articles 41 and following) or the respective IP regulations (eg, the Copyright Act). Further, the regulations of the Swiss Criminal Code must be considered.
How can liability be excluded or limited?
The exclusion of liability for the participation in the infringement or defamation of another party’s IP right is not possible because every party involved in such an infringement or defamation can be liable. This particularly applies where special statutory liability is applicable.
In the field of service providers (eg, blog providers), such providers can contractually limit their liability regarding their users’ content. However, since this is relevant for digital businesses, the exclusion of liability within general terms and conditions for contracts with consumers is critical (due to laws protecting consumer rights). Further, such contractual exclusion needs both parties’ consent. This type of exclusion in the business-to-consumer field can be void, depending on the individual case. However, it is regularly done in the business-to-business field.
Which parties can be held liable for defamatory or infringing content? Can contingent liability be extended to internet service providers (ISPs)?
Every party which, in any way, objectively participates in the infringement or defamation can be liable – therefore, providers are also liable. In 2013 the Federal Court decided that a blog provider – in this case, a newspaper blog – can be liable for defamatory or infringing content (see Decision 5A_792/2011). To reduce the risk of liability, such providers must check the respective content themselves. At present, the Copyright Act is undergoing revision. In the future, internet service providers will have greater obligations with respect to defamatory or infringing content. Failure to meet such obligations may lead to liability.
What rules and procedures govern content takedowns? Can ISPs remove defamatory or infringing content without permission?
Swiss law sets down no specific rules about the civil and criminal liability of internet service providers (ISPs), and particularly not for ISPs’ legal privilege. Rather, general rules apply to the protection of personality rights.
In view of this, the Swiss Internet Industry Association has adopted a code of conduct in order to strengthen legal certainty and establish an industry standard to help clarify the roles, responsibilities and processes relating to illegal online content. The code provides for a notice and notice procedure and a notice and takedown procedure in cases of illegal content. 'Illegal content' is defined as content infringing IP rights, personality rights or constituting a criminal offence (particularly pornography, the portrayal of violence, racism and libel).
However, ISPs have no general obligation to check for unlawful content. ISPs can be accused of a lack of care only if they fail to take reasonable measures after receiving specific indications of an obvious breach of legal rights. Only in the case of an obvious infringement of rights should providers have to remove content on their own initiative in order to avoid liability to pay damages.
What rules, restrictions and procedures govern the licensing of domain names?
The registration and administration of domain names under the domains ‘.ch’ and ‘.li’ are regulated by the general terms and conditions of SWITCH, the Swiss domain name regulator. According to the general terms and conditions, the following rules apply:
- Equal treatment – SWITCH will handle requests for registration provided that the premises are the same, in accordance with the same rules and principles.
- First come, first served – the registration of a domain name for which several valid requests are received will be based on chronological order.
- Legitimacy – a request for registration of a domain name represents to SWITCH the binding warranty of the applicant or holder that the registration to the domain name holder indicated in the request can be made legally and that the holder is entitled to use the domain name.
- Registration for an unlimited period – the registration of domain names for the respective holder is generally for an unlimited period.
- Duty of data maintenance – the holder is responsible for ensuring that all the data of domain names registered for the holder and recorded by SWITCH in the domain name registry (eg, the data of the contact persons and technical details of the domain name) is kept up to date, complete and correct for the entire term of registration.
How are domain name disputes resolved in your jurisdiction?
If the parties cannot agree on entitlement to a domain name or on the legitimacy of its use, they can pay to use the SWITCH dispute resolution service. Decisions issued by the dispute resolution service’s experts are binding for domain name holders even if they do not proceed to the merits in the dispute resolution proceedings.
The dispute resolution proceedings are subject to the relevant rules of procedure. Legal actions before the state courts are available to both the holder and third parties.
IP protection measures
What special measures and safeguards should rights holders consider in protecting their online/digital content?
General Swiss law applies with respect to protecting online/digital content. In this respect, Swiss design law, trademark law or copyright law must be taken into consideration. Works protected by copyright law are defined as literary and artistic intellectual creations with an individual character, irrespective of their value or purpose. Computer programs are also considered to be works. Drafts, titles and parts of works, insofar as they are intellectual creations with an individual character, are also protected by the Copyright Act.
The Trademark Protection Act gives a broad definition of the term ‘trademark’. In principle, any sign that is capable of being represented graphically can be a trademark within the meaning of the law, provided that the sign is used to distinguish goods or services from those of a competitor. Trademarks can be registered with the Swiss Federal Institute of Intellectual Property (IPI).
A design is a unique creative form that can be protected by registering it at the IPI. A design can be protected if it meets the following requirements:
- the design is new; and
- the design has individual character (ie, its overall impression differs sufficiently from existing designs).
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