Annoying advertising calls
Who is not familiar with the annoying advertising calls from some - often dubious - companies trying to sell you a new telephone subscription, a change of health insurance, online trading or other goods or services.
In principle, telemarketing is permitted in Switzerland. However, the legal regulations must be observed: In particular, the provisions on the protection of personality in the Swiss Civil Code(Art. 28 ff. ZGB), as well as the provisions in the Federal Act on Data Protection (Art.8 andArt.12 DSG) and the rules in the Federal Act againstUnfair Competition(Art. 2 and Art. 3 para. 1 lit. u UWG) must be complied with. The advertising call must also not be fully automated, i.e. the call must be made by a person and not by a computer.
With regard to advertising calls, Switzerland has an opt-out system. This means that only persons who do not refuse advertising calls may be called. Until now, the blocking was only recognisable via a note (star entry) in a telephone directory (e.g. telephone book) (cf. Art. 3 para. 1 lit. u UCA). However, many people now refrain from making their number public and therefore no note in a directory is visible. This is particularly true for mobile phone numbers, which is why many advertising companies focus their advertising calls on mobile phone numbers. Until now, the legal situation was unclear and advertising companies deliberately exploited this grey area.
The legislator has recognised this problem and has amended the law to clarify that persons or telephone numbers without a directory entry are treated the same as numbers with a directory entry and endorsement. In future, it will thus be clear that an advertising call to a telephone number that is not listed in any directory is unfair and punishable accordingly.
As an affected person, this will unfortunately remain a battle against windmills. The only means to defend oneself is to file a complaint with SECO or a criminal complaint.
Further information on this topic can be found on the SECO website, where you will also find a corresponding notification form.
This article was written by RA Yves Gogniat.
If you have any questions on the subject, you can contact Balthasar Wicki directly.