No Obligation For Facebook Switzerland To Disclose User Data In Criminal Proceedings

Author:Dr. Thomas Rihm
Profession:Rihm Attorneys
 
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In a decision rendered on November 16, 2016, the Swiss Federal Supreme Court ruled that Facebook Switzerland cannot be obliged by state prosecutors of the Canton of Vaud to transfer data on a Facebook-account supposedly set up in Switzerland. The highest court in Switzerland held that Facebook Switzerland is not the owner of the requested data as it has no control over the data. The state prosecutors were told that the they should have lodged a request for international legal assistance targeting at the end of the day Facebook Ireland

"The journalist claimed that a person using a pseudonym had published antisemitic remarks on a Facebook-account opened up in Switzerland."

In 2015, the state prosecutors' of the Canton of Vaud initiated a criminal proceeding for defamation following a criminal complaint filed by a Belgian journalist. The journalist claimed that a person using a pseudonym had published antisemitic remarks on a Facebook-account opened up in Switzerland. The state prosecutors thereupon ordered Facebook Switzerland and its two managing directors to disclose the identity, the access data as well as the IP-address of the concerned account holder. Facebook Switzerland and its two managing directors lodged complaints with the Cantonal Court of Vaud, claiming that they did not manage the Facebook website themselves. In other words, they alleged that the discloure order had to be addressed towards Facebook Ireland, as the required information was under control of Facebook Ireland. Whilst the Cantonal Court of Vaud rejected this complaint in 2016, Facebook Switzerland and the two managing directors called upon the Swiss Federal Supreme Court

"Only the holder and/or owner of the data or a person exercising a de...

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