Seeking a Switzerland cop

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ICLG - Cybersecurity Laws and Regulations - Switzerland covers common issues in cybersecurity laws and regulations, including cybercrime, applicable laws, preventing attacks, specific sectors, corporate governance, litigation, insurance, and investigatory and police powers — in 26 jurisdictions. If so, please provide details of the offence, the maximum penalties available, and any examples of prosecutions in your jurisdiction:. According to art. Data theft is covered by art. Inthere were 16 convictions for crimes under art.

Denial-of-service attacks may constitute damage to data art. There is no requirement that the process is irreversible; even the temporary denial of access is punishable. A custodial sentence of a minimum of one to five years may be imposed on an offender who has caused major damage. Other than hacking, this offence is prosecuted ex officio.

Depending on the specific modus operandi of the attack, further criminal provisions may apply, including extortion art. Depending on the circumstances, phishing may be covered by multiple criminal offences under the SCC, in particular:. The fraudulent use of a trademark or a copyright-protected work may be prosecuted under art. Infection of IT systems with malware including ransomware, spyware, worms, trojans and viruses.

Apart from the application of the specific criminal provisions applicable to denial-of-service and phishing attacks cf. Distribution, sale or offering for sale of hardware, software or other tools used to commit cybercrime. If the offender acts for commercial gain, a custodial sentence of a minimum of one to five Seeking a Switzerland cop may be imposed.

The FSC held that this provision also applies where the instructions have not been created by the offender, and even if they are incomplete, so long as they contain specific and relevant information for the manufacture of programs used to cause damage to data BGE IV Any person who markets or makes accessible passwords, programs or other data that they know or must assume are intended to be used to commit a hacking offence art.

Possession or use of hardware, software or other tools used to commit cybercrime. While not explicitly regulated, identity theft can be punishable under arts bisSCC unauthorised access to a data-processing system and unauthorised obtainment of data; cf.

Electronic theft e. Further, the betrayal of a manufacturing or trade secret amounts to a criminal offence if the offender is under a statutory or contractual duty of confidentiality art. This offence may be prosecuted upon complaint and is punishable with a custodial sentence not exceeding three years or a monetary penalty.

Depending on the circumstances, political, industrial or military espionage arts — SCC may also apply. These offences are generally punishable with a custodial sentence not exceeding three years, a monetary penalty or, in serious cases, a custodial sentence of a minimum of one year.

A wilful breach of a professional duty of confidentiality e. Deliberate and unlawful copyright infringements are covered by arts 67 et seqq. Copyright Act and are punishable with a custodial sentence not exceeding one year or a monetary penalty. Unsolicited penetration testing i. Unsolicited penetration testing may qualify as hacking and be sanctioned under art. Any other activity that adversely affects or threatens the security, confidentiality, integrity or availability of any IT system, infrastructure, communications network, device or data.

Beyond the above, notable other criminal offences, both general and sector-specific, include the following:. Because IT security is regulated in Switzerland with respect to specific objects data, systems and products and industries, further criminal offences may apply, depending on the circumstances. Sentencing under Swiss law is determined by multiple factors pertaining to the offender. Mitigating factors include: acting with honourable motives, under duress or in serious distress; excusable emotional strain; psychological stress; serious provocation; a show of genuine remorse, in particular if the offender has made reparations; or the time elapsed since the crime where the offender has exercised good behaviour art.

Withdrawal from the act or active repentance are further potential mitigating factors art. The competent authority shall refrain from prosecuting the offender, bringing him to court or punishing him if the level of culpability and the consequences of the offence are minor art. Cybersecurity Incidents may trigger the application of many different statutes.

Rather than in a Seeking a Switzerland cop manner, Switzerland regulates cybersecurity with respect to specific objects data, systems and products and specific industries. Moreover, minimum cybersecurity measures are rarely defined by law, but are left to self-regulation. There is hardly any case law to clarify the standards, either. In the globalised universe of cybersecurity, laws often have an extraterritorial effect. Provisions on cybersecurity may also include guidelines and standards.

While generally non-binding, they may be taken into when interpreting statutory provisions. They may also be declared binding by sector-specific associations or by reference in contracts. Currently, there are no generally applicable mandatory cybersecurity requirements for critical or essential infrastructure and services.

The regulation of cybersecurity for such infrastructure and services is fragmented and inconsistent, and it often lacks a precise definition of the required security measures cf. One of its focus areas remains the improvement of ICT resilience of critical infrastructures. The CIP II lists the following nine critical infrastructures for Switzerland: financial and insurance services; healthcare; telecommunications; and public administration set out in greater detail in question 4.

It contains minimum requirements for the protection of information and IT infrastructure hosted by the federal authorities. If so, please describe what measures Seeking a Switzerland cop required to be taken. Other than for critical or essential infrastructures and services cf. Their implementation may instead be driven by general legal requirements that, depending on the circumstances, may include the implementation of some or all of the above measures.

They include, notably, the overall responsibility for the due management of a company and individual professional confidentiality obligations as well as data protection requirements. Guidelines and standards may also include provisions on cybersecurity.

They may also be declared binding by sector-specific associations or by reference in contracts cf. If so, please provide details of: a the circumstance in which this reporting obligation is triggered; b the regulatory or other authority to which the information is required to be reported; c the nature and scope of information that is required to be reported; and d whether any defences or exemptions exist by which the organisation might prevent publication of that information.

Currently, Switzerland knows no general obligation to report Incidents or potential Incidents to the authorities. Except for serious security incidents in critical infrastructures, Incident reporting is currently encouraged on a voluntary Seeking a Switzerland cop, typically via the recently established NCSC which incorporates the former Reporting and Analysis Centre for Information Assurance MELANI and serves as a new national contact point cf. Illegal activity on the internet can also be reported to the Cybercrime Coordination Unit Switzerland CYCO which may forward the matter to the competent domestic and foreign law enforcement authorities.

Sector-specific regulations for critical infrastructures regularly require the reporting of serious security incidents without delay. The scope of serious security incidents generally extends beyond, but may include, Incidents. Among the most prominent cybersecurity reporting obligations for critical infrastructures are those for financial and insurance services cf. The critical infrastructure reporting duties in the case of serious security incidents are currently under review by the Federal Council, and decisions are expected by the end of A specific reporting obligation for Incidents relating to personal Seeking a Switzerland cop will be introduced by the revised FADP.

Data controllers will have to notify the Federal Data Protection and Information Commissioner FDPIC as soon as possible of data breaches that are likely to result in a high risk for the personality or the fundamental rights of data subjects.

Correspondingly, data processors will have to inform the data controller as soon as possible of any data breach. A notification of the FDPIC must at least refer to the nature of the data breach, its consequences, and any measures taken or planned. In any subsequent criminal proceeding, the notification may only be used against the notifying company or person with their consent art.

If so, please provide details of: a the circumstance in which this reporting obligation is triggered; and b the nature and scope of information that is required to be reported. Depending on the seriousness of the data breach, however, such a requirement may arise under the general principle of data processing in good faith art.

The revised FADP will explicitly require data controllers to inform affected data subjects of a data breach if it is necessary for their protection or if the FDPIC — after having been informed of the data breach cf. Exceptions will apply in particular in cases of overriding public or private third-party interests or where reporting would be impossible or require a disproportionate effort art. Further obligations to report Incidents or potential Incidents to affected individuals or third parties may derive from the generally required lawfulness of all data processing art.

For lack of a general reporting obligation for Incidents, there are currently no generally applicable penalties for non-compliance with reporting obligations. Sector-specific sanctions may apply, such as in case of financial and insurance services, healthcare and telecommunications cf. Under the revised FADP, object-specific sanctions will apply for violations of the minimum security requirements for personal data and for non-compliance with orders by the FDPIC arts 8, 24, 61 lit.

Cyber risks are a key part of the prudential supervision by FINMA, which has stepped up its efforts in the area. These risks are monitored directly, for example through focused on-site audits by FINMA, and monitored by audit firms as part of the regulatory audit process. In addition, larger institutions are regularly reminded of the need to take appropriate precautions against cyber risks during self-assessments. The outcome of the self-assessments was that most of the participating institutions had made adequate provision for those risks. Beacons i.

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There is no law specifically allowing or prohibiting the use of beacons. Honeypots i. There is no law specifically allowing or prohibiting the use of honeypots. Companies should, however, keep the same regulations in mind as with beacons.

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Sinkholes i. There is no law specifically allowing or prohibiting the use of sinkholes. The same considerations apply as with beacons and honeypots. Organisations may monitor the electronic communication of their employees, provided that they comply with the provisions pertaining to the processing of personal data in the CO art. Consequently, such monitoring must, in particular, be: carried out lawfully; in good faith; proportionate i.

Depending on the circumstances, the monitoring of employee data can be justified on the basis of the employment contract, industry-specific laws applicable to the employer e. Relying on employee consent as justification for the processing, however, entails certain risks due to the usually limited ability of employees to refuse consent.

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Under the principle of transparency, employers are recommended to issue a monitoring regulation setting out the specifics of the surveillance measures. Ordinance 3 to the Employment Act prohibits surveillance and monitoring systems which monitor the behaviour of employees art. Employers must ensure that the health of employees is not affected by the monitoring. However, a non-personal — anonymous or pseudonymous — evaluation of employee data is usually sufficient in order to prevent cyber-attacks, and it is, in principle, lawful under this provision, even if conducted systematically.

In certain individual cases e. The Federal Act on the Control of Dual-Use Goods, Specific Military Goods and Strategic Goods, as well as the respective Ordinance and Annexes, provide for certain import and export restrictions for dual-use goods, including technology and software. Annex 2, part 2, 4A, 4D and 4E Moreover, according to Annex 2, part 2, 5A, systems for information security and their components, including cryptographic technology for the confidentiality of data with a specific security algorithm, are subject to export restrictions.

Exceptions are available, such as for technology which is available to consumers, cryptographic technology for digital atures, Seeking a Switzerland cop algorithms below 56 bit-encryption and many more. Furthermore, export restrictions may apply to equipment, and its components, for the interception and interruption of mobile communication and surveillance equipment Annex 2, part II, 5A Please include details of any common deviations from the strict legal requirements under Applicable Laws.

The Applicable Laws and market practice vary across the different business sectors in Switzerland. The NCS II has acknowledged the need for greater standardisation and regulation across the different sectors cf.

Seeking a Switzerland cop

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