Switzerland: Upcoming Revisions In The Telecommunication Sector

Last Updated: 28 February 2018
Article by Katia Favre

1 Upcoming Revisions

The telecommunications sector is on the move when looking at the upcoming legislation in revision, namely revisions of the Intelligence and Security Act, the Lawful Interception Act, the Telecommunications Act, the Copyright Act and of the Data Protection Act.

The first revision to enter into force is the revision of the Intelligence and Security Act, followed by the revision of the Lawful Interception Act. The other revisions are still in process, none of them has reached parliament yet. Nevertheless, the amend-ment of the two first acts provide us with the oppor-tunity for a tour d'horizon.

2 Intelligence and Security Act and its Ordinances

Even after passing parliament, the Intelligence and Security Act has remained quite controversial and a referendum has been requested. It has not been successful and the Intelligence and Security Act passed referendum last September. Thereafter, the Ordinances have been drafted, sent into consultation and finalized.

The new Intelligence and Security Act requests coop-eration of service providers, without, however, using the terms defined in the Telecommunication Act or in the Lawful Interception Act, so that it remain unclear who will need to cooperate (unclear personal scope of application).

The service providers will mainly have to cooperate with regard to two measures:

  • Intrusion in the computer systems and net-works (e.g. Trojan horses), whereby the cooperation obligations are not precisely de-fined so that the role of the service providers is unclear yet;
  • access cable networks, whereby the service providers will have to provide the Service with (technical) access information to the ca-ble network and give access to their location if requested, and provide data found by means of keyword research.

The two measures may only be ordered if certain conditions are met. The measures need to be ap-proved by the Federal Administrative Court and, be-sides this approval, the access to cable networks needs also to be approved by the Head of the Federal Department of Defence, Civil Protection and Sport (one of the seven Federal Councillors). The service providers will not have a right to challenge the order unless the order requests obligations for the service provider that are not foreseen by the Intelligence and Security Act.

The Intelligence and Security Act and its Ordinances entered into force on 1st September 2017

3 Lawful Interception Act and its Ordinances

3.1 Revison

Parliament has revised the Lawful Interception Act in March 2016 and a first draft of the Ordinances thereto has been sent for consultation before authorities, political parties and stakeholders a few months ago. The final version of the Ordinances is still expected.

The personal scope of application of the revised Law-ful Interception Act has been extended and includes now the following providers in the telecommunications sector:

  • telecommunications service providers, as defined in the Telecommunications Act
  • OTT service providers enabling one or two way communication
  • providers of company networks
  • providers of public access points
  • retailers of SIM or similar cards

Below, you will find a summary of their obligations under the revised Lawful Interception Act.

3.2 Telecommunications Service Providers

The interception obligations for the telecommunica-tions service providers have essentially remained unchanged, i.e. they must provide the Surveillance Service with the following data:

  • identification data
  • content data in real time, and
  • traffic data in real time and retroactively for a period up to 6 months.

The Ordinances will define the different interception types in more details.

3.3 OTT Service Providers

The OTT services providers fall under the scope of the Lawful Interception Act, which is new. Up to pre-sent, some OTT service providers fell under the scope as they were considered as telecommunica-tions service providers (like skype), while others did not (like facebook). In this sense, the revised Lawful Interception Act brings clarity and guarantees equal rights.

The main obligations of the OTT service providers are to provide the Surveillance Authority with:

  • access to their premises and systems
  • information requested
  • traffic data the providers have in their pos-session.

However, major providers of OTT services will have to provide more data to the Surveillance Service, namely the same data as the telecommunications service providers. This means that major providers of OTT services will have to provide the Surveillance Authority with

  • identification data,
  • content data in real time, and
  • traffic data in real time and retroactively for a period up to 6 months.

The draft Ordinance defines the major providers of OTT services as companies with (i) an annual consol-idated turnover of CHF 100 mio (essentially in the telecommunications sector) and which provide their OTT services to at least 5000 customers or (ii) com-panies having received more than 50 surveillance requests during the precedent 12 month-period. This definition could be modified in the final version of the Ordinance.

3.4 Providers of Company Networks and Provid-ers of Public Access Points

Both providers of corporate networks (internal net-works) and providers of public access points (internet café, hotels, restaurants, hospitals, schools, etc.) have to cooperate with the Surveillance Service by providing:

  • access to their premises and systems
  • information requested
  • traffic data the providers have in their pos-session.

3.5 Retailers of SIM Cards or Similar Cards

Retailers of SIM cards or similar cards have to identify the purchaser and need to retain copies of their pass-port, ID or of the Swiss residence and/or work permit. The ordinance does not explicitly require in-person identification; other means of identifications might be possible.

3.6 Proof of Compliance

Upon request of the Surveillance Service, the tele-communications service providers have to prove at their own costs that they comply with the Lawful Inter-ception Act and are in a position to fulfil their obliga-tions.

The service providers may delegate lawful intercep-tion to another service provider.

3.7 Sanctions

In case of non-compliance, the revised Lawful Inter-ception Act foresees a fine up to CHF 100'000.

3.8 Entry into Force

The revised Lawful Interception Act will enter into force on 1st January 2018.

4 Telecommunications Act

The first draft of the revised Telecommunications Act has been sent for consultation before authorities, political parties and stakeholders. Based on the out-come of the consultation, the authorities will send a second draft to Parliament presumably in Octo-ber/November 2017. We expect that the draft will respect technology neutrality, protect minors, include network neutrality or transparency, liberalize the use of radio frequencies and reduce the administrative burden for service providers.

According to our experience, the revised Telecom-munications Act will not enter into force within the next 3 or 4 years.

5 Copyright Act

The first draft of the revised Copyright Act has been sent for consultation and contained a clause on liabil-ity exclusion for hosting and access providers if they followed a notice-take down-procedure (hosting pro-viders) or blocked transmission (access providers). The obligation for the access providers to block transmission has been broadly criticized. The new draft of the Copyright Act to be sent to Parliament will probably contain a notice-take down-procedure for hosting providers together with an exclusion of liability but no blocking obligations for access providers.

According to our experience, the revised Copyright Act will not enter into force within the next 2 or 3 years.

6 Data Protection Act

The draft of a revised Data Protection Act has been sent into consultation with authorities, political parties and stakeholders. The outcome of the consultation is currently processed and, based thereon, a revised draft will be published. The first draft increases the rights of the data subject and introduces heavy sanc-tions, so that opposition of the economy is expected and the draft to be sent to Parliament might differ from the first draft that has been published. One of the main focuses of the revision, which will probably remain, is the adequacy of the Swiss level of data protection with regard to the protection granted under General Data Protection Regulation (GDPR) of the European Union.

Because the GDPR enters into force in May 2018, the authorities push the revision but, according to our experience, the revised Data Protection Act will not enter into force within the next 2 years.

7 Conclusion

The pending revisions in the telecommunications sector requests the providers to keep their eyes open and to constantly adapt their processes in order to remain compliant. Overall, a challenging task.

1st September 2017

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions