The Federal Council’s decision to regulate reflects a change in policy, with forthcoming legislation set to be guided by the EU’s Digital Services Act
Strengthening transparency and end users’ rights: On 5 April 2023, the Federal Council of Switzerland announced that it had instructed the Federal Department of the Environment, Transport, Energy and Communications (DETEC) to prepare a draft bill for consultation on the regulation of large communications platforms. According to the Federal Council, regulation of platforms is currently limited, and the systems that determine the content users see are “opaque”. End users are also in a weak position vis-à-vis digital platforms, which have the ability to block accounts or delete content, and at present offer little or no opportunity for recourse. As such, the Federal Council wants to strengthen the rights of end users and demand more transparency from platforms, at the same time without limiting their positive influence on freedom of expression.
The new bill will have four key pillars: The Federal Council considers that new legislation is necessary to achieve its objectives, stating that the forthcoming bill from DETEC will have the following features:
Large platforms will be required to have a point of contact and a legal representative in Switzerland;
Users whose content has been deleted or whose account has been blocked should be able to directly ask the relevant platform to review the measure. In addition, an independent Swiss arbitration board is to be set up, which will be funded by the firms themselves.
Platforms will be required to indicate all advertising and, in the case of target group specific advertising, publish the main parameters according to which advertisements are displayed. As a result, it will be possible to determine who receives a particular advertisement and why, thereby improving transparency; and
Users should be able to easily report hate speech, depictions of violence and threatening language to platforms, which will be required to review the reports and inform the users of the outcome.
Switzerland has reconsidered its position since 2017: Seemingly conscious of the possibility of unnecessary censorship and/or regulatory overreach, the Federal Council has directed DETEC to ensure that Swiss authorities' powers to intervene in content should not exceed those in the “non-digital sphere”. Where appropriate, the new legislation should also be based on the EU’s Digital Services Act (DSA), including mirroring the bloc’s focus on regulating so-called intermediaries. The global tech policy landscape has become dominated by the EU as it has taken a tough line on digital platforms. While Switzerland has concluded as recently as 2017 not to pursue further regulation, growing concerns over the power of platforms, the activities of neighbouring markets and potentially the extra-territorial scope of the DSA appear to have sparked a rethink. DETEC, in collaboration with the Federal Office of Justice (FOJ), now has until March 2024 to prepare a draft bill for consultation.
