Draft amendment to the Swiss Copyright Act creates explicit legal basis for the use of personal data by rights holders for criminal prosecution purposes

On 22 November 2017, the Swiss Federal Council issued the draft of an amendment to the Swiss Federal Copyright Act. The relevant documentation is available here in German, French, Italian, and, in part only, in English.

The draft inter alia specifically targets the consequences, from a copyright perspective, of illegal downloads of protected contents (music, movies, video games, books), including through peer-to-peer platforms. Web hosting service providers shall for instance be required to implement a so-called “stay down” process so as to avoid infringing contents being hosted again on their platforms after a take down.

Of particular relevance in terms of data protection is a newly proposed article 77i of the Copyright Act which explicitly authorises rights holders to process personal data to the extent required for filing a criminal complaint. Furthermore, this new article explicitly authorises rights holders to also use such personal data for civil law claims for damages in criminal proceedings or upon completion of a criminal proceeding. The rights holders most however publicly disclose the purpose of the processing, the categories of data being processed and the extent of the processing activities and must not combine such personal data with data that has been collected for other purposes.

The newly proposed article is a direct consequence of the Swiss Federal Supreme Court’s ruling in the so-called “Logistep” decision of 8 September 2010. The Swiss Federal Supreme Court indeed ruled that user IP addresses constituted personal data. The court held that IP addresses collected by a service provider for the purpose of allowing rights holders to file a criminal complaint was unlawful under the current data protection legislation (see News dated 3 February 2011 and 30 November 2010). The newly proposed article will thus create an explicit legal basis for the processing of personal data, including IP addresses, for the purpose of criminal prosecution by rights holders. The draft amendment will now undergo parliamentary debate and, once approved, be subject to an optional referendum. Entry into force is not yet known.