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In a decision rendered on November 16, 2016, the Swiss Federal
Supreme Court ruled that Facebook Switzerland cannot be obliged by
state prosecutors of the Canton of Vaud to transfer data on a
Facebook-account supposedly set up in Switzerland. The highest
court in Switzerland held that Facebook Switzerland is not the
owner of the requested data as it has no control over the data. The
state prosecutors were told that the they should have lodged a
request for international legal assistance targeting at the end of
the day Facebook Ireland
"The journalist claimed that a person using a pseudonym had
published antisemitic remarks on a Facebook-account opened up in
Switzerland."
In 2015, the state prosecutors' of the Canton of Vaud
initiated a criminal proceeding for defamation following a criminal
complaint filed by a Belgian journalist. The journalist claimed
that a person using a pseudonym had published antisemitic remarks
on a Facebook-account opened up in Switzerland. The state
prosecutors thereupon ordered Facebook Switzerland and its two
managing directors to disclose the identity, the access data as
well as the IP-address of the concerned account holder. Facebook
Switzerland and its two managing directors lodged complaints with
the Cantonal Court of Vaud, claiming that they did not manage the
Facebook website themselves. In other words, they alleged that the
discloure order had to be addressed towards Facebook Ireland, as
the required information was under control of Facebook Ireland.
Whilst the Cantonal Court of Vaud rejected this complaint in 2016,
Facebook Switzerland and the two managing directors called upon the
Swiss Federal Supreme Court
"Only the holder and/or owner of the data or a person
exercising a de facto and/or legal control over the data can be
addressee of a criminal discloure order."
The hightest court in Switzerland now protected the
claimants' view saying that both the Swiss Code of Criminal
Procedure of 2011 and the International Convention on Cybercrime
2001 provide that only the holder and/or owner of the data or a
person exercising a de facto and/or legal control over the data can
be addressee of a criminal discloure order. The Swiss Supreme Court
further held that none of the documents filed with the cantonal
court allowed the conclusion that Facebook Switzerland is the owner
of the required data or has a direct access to the user data.
According to the Swiss Supreme Court, it is rather Facebook
Ireland to be addressed as a contracting party to the
Facebook-users outside the US and Canada which controls the
corresponding personal data, whilst the business purpose of
Facebook Switzerland is limited to support marketing, the sale of
advertising space as well as to public relations and communication,
so in order achieve requested data transfer, the state prosecutors
of the Canton of Vaud were told to demand the data from Facebook
Ireland via means of international legal assistance.
[Rough translation of today's media release by Swiss Supreme
Court]
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