Since April 1, 2012, all business websites in Switzerland have had an obligation to provide an impressum (contact data) to their users. The background of this general obligation, applying to all electronic commerce in Switzerland, forms the revision of the Federal Unfair Competition Act (UCA) that came into force on April 1, 2012.
Within the framework of this revision, the Unfair Competition Act will be amended to include the following new Article 3 (1) (s):
“Acting unfairly applies particularly to those that offer goods, works or services via electronic commerce and fail to provide clear and complete information about their identity and contact address, including an electronic mail address.”
This new general obligation to provide contact data is similar to provisions contained in the European E-Commerce Directive, but adopts the directive only partially.
Scope of the obligation to provide an impressum
The UCA includes generally any personal behavior liable to affect competition – meaning supply and demand. It is not relevant whether such behavior is business or private behavior. With online offerings, such as websites, it is relevant that (1) they are publicly accessible, and (2) that their content or behavior connected to such content may impact competition because (3) there is a connection to an economic activity – including third parties. The ‘commerciality’ of a website is without significance under unfair competition law.
Electronic commerce (e-commerce) comprises all forms of communication used to offer goods or services by electronic means, as well as the facilitation of such offers. Common forms of such communication are the internet and websites, but also includes other forms such as mobile websites, native apps for smartphones, and social networks (social media). The provision of goods may comprise, for example, the sale of books or computer accessories, the offering of work includes the composition of texts or the designing of websites, and the provision of services includes, for instance, consulting or translation services. The publishing of content may also fall under the e-commerce label.
The use of foreign hosting providers or of foreign domain names does not dispense with the obligation to provide an impressum. Anybody operating a Swiss weblog on Blogger, Tumblr, or WordPress.com is also covered by this obligation.
Those offerings not designated as e-commerce include anything published exclusively privately, for idealistic or scientific purposes, or that is just internally accessible – within an organization or company. Also exempt from the obligation to provide an impressum are, according to the revised UCA, voice telephony, the direct exchange of e-mails, and comparable individual communications.
An impressum must contain clear and complete information regarding the identity and contact addresses of the provider/vendor, including e-mail addresses. The label ‘Impressum’ is not legally required, but recommended. Such a label, as well as the placement within the footer of a website – as is common practice – makes it easier to locate the impressum.
Information regarding the identity of the provider/vendor must be clear and complete. In my view, this particularly includes:
- Full name, or company name, of the provider/vendor
- Residential address or company address
- Telephone and fax numbers, e-mail addresses, and other available contact addresses facilitating direct and efficient communication
Providing a postal box address or offering communication through a contact form is not sufficient. Identity information must be directly published in text form and not just as an image. Spam protection does not mean hidden or incomplete e-mail addresses can be provided at the expense of legally required clear information.
The above-mentioned European E-Commerce Directive makes additional information compulsory, such as commercial registration and VAT numbers (if applicable), relevant supervisory authorities, professional associations, and professional rules for regulated professions. In Switzerland, such information need not be legally provided within the scope of the obligation to provide an impressum.
The UCA provides for penalties according to civil and criminal law for violations of the new obligation to provide an impressum. For deliberate unfair competition, the UCA provides for, on application, up to three years of imprisonment and monetary penalties of up to 360 daily fines. Sentences for a deliberately missing impressum would probably be significantly less than that.
Cease-and-desist letters with penalty clauses are not known within the Swiss legal system.
As a rule of thumb, I recommend all websites and other online offerings – including ‘private’ weblogs – publish clear and complete information regarding identity and contact addresses. This information should be labeled as ‘Impressum’ with a link on all pages of a website.
The question of whether a website falls under the scope of the UCA and engages in electronic commerce must be determined on a case-by-case basis. The revised UCA does not contain information regarding the latter, the State Secretariat for Economic Affairs (Seco) has not published any recommendations, and no specific case law exists yet. Since any serious online business carries an impressum as a matter of course, such a determination should not be necessary in most cases.
For online offerings like twitter – which do not facilitate the publication of an impressum – I recommend a corresponding web link. In my view, a web link leading to the connected website is sufficient if the impressum can be found there.