Part 9 of our series on data protection law in Switzerland
In this part of our series, we explore whether consent is needed to send electronic direct marketing messages, how this consent must be obtained and what exceptions apply.
Prior consent as a general rule
In Switzerland, electronic direct marketing is governed not only by the Federal Act on Data Protection (FADP), but also by the Federal Act on Unfair Competition (UCA). According to Art. 3(1)(o) UCA, mass advertising that has no direct connection to a requested service or content may only be sent with the recipient's prior consent.
Each marketing message must also:
- clearly identify the sender, and
- provide a simple, free-of-charge way to opt out of future communications.
Exception to the consent requirement
There is one key exception to this rule. Prior consent is not required if all the following conditions are met:
- The sender obtained the recipient's contact details during the sale of goods, services, or works;
- The sender clearly informed the recipient at the time of the sale that their data could be used for marketing purposes and offered an opportunity to refuse;
- The advertising relates only to the sender's own goods, services, or works that are like those originally purchased;
- An opt-out option is included in every marketing message.
If all these criteria are satisfied, electronic direct marketing without prior consent is permitted under the UCA.
Conditions for consent
The UCA does not impose strict formal requirements for obtaining consent. This means consent can be:
- explicit, such as ticking a checkbox, or
- implied, for example if a user does not untick a clearly visible pre-ticked checkbox.
However, silence or inaction (e.g., not objecting to unsolicited messages) does not qualify as valid consent.
It is strongly recommended to obtain consent in a way that can be documented, as the burden of proof lies with the sender in any legal dispute.
Preview of Part 10
In part 10 of our series, we will examine whether cookies and tracking technologies are regulated by consent requirements.
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.
