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Opt-in, opt-out: Legally compliant cookies on websites in Switzerland
A guest contribution by lawyer Martin Steiger, Steiger Legal
The background to this is the so-called cookie directive of the European Union (EU) from the end of 2009. This directive is also relevant for website operators in Switzerland. Switzerland has had its own cookie regulation since spring 2007, but it is much less restrictive compared to the EU.
In the EU, since the Cookie Directive came into force, cookies may only be used if the users of a website have given their consent after prior notification (opt-in principle, informed consent). This regulation applies not only to cookies, but also to any storage of information on users' end devices and access to such information. These include, for example, so-called flash cookies (Local Shared Objects, LSO) and web storage (DOM Storage).
As an exception, the cookie guideline does not apply to cookies that are absolutely necessary, for example to identify registered users or to manage a shopping cart. Most cookies, however, should not be absolutely necessary, but are mainly used in connection with advertising and for collecting user data.
Implementation of the cookie directive in the EU
Plugins are available for common content management systems (CMS). For WordPress there are, among other things, “Cookie Notice” and “Cookie Law Info”.
Opt-out: Cookie regulation in Switzerland
The Swiss cookie regulation has been in force since April 1, 2007 and can be found in Art. 45c lit. b of the Telecommunications Act (LTC). So that is "Editing of data on third-party devices by means of telecommunication transmission [...] is only permitted [...] if the users are informed about the processing and its purpose and are advised that they can refuse the processing." A violation of this cookie regulation is considered an administrative offense and can be punished with a fine of up to 5000 francs (Art. 53 LTC).
According to this cookie regulation, website operators in Switzerland must inform their users about cookies used and also state the purpose. It must also be explained how cookies can be rejected, i.e. deactivated in the browser. In contrast to the EU, Switzerland follows the opt-out principle and consent is generally not required. The consent only needs to be express if it is required in exceptional cases for cookies with particularly sensitive personal data or personality profiles (Art. 4 No. 5 DSG).
The cookie regulation in Switzerland does not contain any formal requirements. As a rule, a corresponding note in the data protection declaration, as it is linked on many websites in the footer of individual pages, is sufficient. Concerning the deactivation of cookies, short instructions for the common browsers are user-friendly, but are not compulsory due to the Swiss cookie regulation. Some websites point out that without cookies, not all functions can be used.
Briefly formulated and as part of a website's data protection declaration, the Swiss cookie regulation could be implemented as follows:
You can deactivate cookies in whole or in part at any time in the settings in your browser. If cookies are deactivated, you may no longer be able to use all the functions of this website. »
Recommendations for website operators in Switzerland
- Consider any third-party cookies: If third-party cookies are used by services such as Google Analytics, additional information is required.
Note: In case of doubt, in the event of ambiguity and for clarifications in individual cases, we recommend that you seek advice from a specialist such as a lawyer.
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