The Irish Data Protection Commission DPC has imposed a fine of 225 million Euros on Whatsapp for violations of the provisions of the European General Data Protection Regulation (GDPR).

The investigation against Whatsapp, which has its European headquarters in Ireland, was initiated by the DPC in 2018 when the GDPR came into force. The background to the investigation were complaints from both Whatsapp users and third parties as well as a request for assistance from Der Bundesbeauftragte für Datenschutz und Informationsfreiheit (the German Federal Data Protection Authority) to the DPC, which were in connection with requests for information to Whatsapp. This also involved the transfer of personal data to other Facebook companies.

The Federal Law on Amendments to the Swiss Code of Obligations, which the Federal Councils passed on June 19, 2020, will comprehensively revise stock corporation law. The referendum deadline expired without having been used on October 8, 2020. The new law is expected to come into force in the second half of 2021.

The revision aims, among other things, to improve corporate governance at the board level. What is new?

First, what do Swiss companies have to do now?

• Check whether your company transfers personal data to the USA based on the Swiss-US Privacy Shield. A list of providers who ( at least partially) rely on the Swiss-US Privacy Shield can be found here: Privacy Shield list (with button Advanced, filter "Program" set to Swiss-US) A good starting point may also be your own privacy policy, which often informs about the use of the Swiss-US Privacy Shield.
• If such transmissions take place, check whether you can mitigate the existing data protection risks with contractual guarantees instead (more on this below).
• If this is not possible, consider solutions that effectively prevent access (e.g. encryption), suspend data transmission (more on this below), switch to a European provider or - in the case of smaller data sets or data sets that are yet to be established - obtain the consent of all those concerned.

In a nutshell:

• The Court of Justice of the European Union in its decision of 16 July 2020 declared the EU-US Privacy Shield invalid. As a result, numerous transfers of personal data from companies in the EU to the USA are no longer data protection compliant.
• Switzerland has its own treaty, the Swiss-US Privacy Shield, which is essentially identical to that of the EU. In contrast to the EU, the Swiss-US Privacy Shield is currently still valid and in force.  However, it can be expected that the Swiss-US Privacy Shield will soon be repealed or declared invalid as a result of the CJEU ruling.
• Swiss companies should therefore do the following:

Julia Bhend has been selected for inclusion in The Best Lawyers in Switzerland 2020  / Handelsblatt for her work in technology law. We are very proud of this recognition!

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• Julia Bhend

Probst Partner AG has organized a competition for start-ups that have been registered in the commercial register for less than 3 years. Many applications were received, which tried to convince the jury members with their creative ideas, solid business plans and committed teams. The top-class jury, consisting of Teresa Mandl, Jana Lev, Ralph Peterli, Alwin Meyer and Ralph Mogicato, has chosen the winner. The winner is Tinamu Labs AG (http://tinamu-labs.com), which has developed software that collects and evaluates data from drones that enter areas that are difficult to access (e.g. sewer systems). As a prize, Tinamu Labs AG will receive legal consulting services at a value of CHF 10‘000 from Probst Partner AG. Probst Partner AG congratulates the team of Tinamu Labs AG on this success.

Two employees of Probst Partner AG have passed their exams. We congratulate MLaw Alexandra Williams-Winter on passing the bar exam of the Canton of Zurich. Ms. Williams-Winter worked as a trainee at Probst Partner AG and has now successfully passed the bar exam. She will remain with the firm as an attorney-at-law.

We also congratulate our assistant Ms. Hylja Ismaili on successfully passing the CAS Paralegal. Mrs. Ismaili will further strengthen our law firm with her legal knowledge.

In Switzerland, a proximity tracing application is currently being tested (Swiss CovidApp), which allows users to anonymously track whether they have recently been in contact with a Covid infected person.  The Federal Council has issued an ordinance on this and parliament will be discussing the matter in June. Janine Reudt-Demont and Kaj Seidl-Nussbaumer have looked into this as well as into the Covid collaboration between the Federal Office of Public Health and Swisscom and have prepared a short article on the subject.

AIJA Questionnaire re Corona Tracing in Switzerland

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• Kaj Seidl-Nussbaumer