8 December 2019 – The draft DPA was debated in the National Council in September 2019 (see our news on the subject). Currently, the Council of States (representing the Cantons) is debating the draft during its winter session. After the National Council’s debate, the draft was sent to the Council of States’ Political Institutions Committee which has proposed the following main amendments to the Council of States:

• Duty to inform and right to access: the information to be provided in this respect shall be extended by requesting the controller to provide a list of the data subjects’ rights and to notify the data subjects of its intention to process personal data for credit checks.
• The term “profiling with a high risk” shall be statutorily defined, meaning that some data processing activities lead to a high risk for the rights and freedoms of natural persons by processing certain personal data on a regular and systematic basis. Such data processing activities require particular measures in order to ensure appropriate protection in this respect.
• Consent: as regards profiling, explicit consent shall only be requested in the event of a profiling with a high risk. Further, any disclosure to third parties shall be based on explicit consent; such a rule would result in the obligation that any intra-group data flow must be based on consent which is clearly not the rationale in accordance with the DPA.
• Intra-group exemption: at the same time, the Council of States wishes to implement an intra-group exemption as regards certain data processing activities such as the limitation of the duty to inform and the right to access or when justification in accordance with article 13 DPA (article 27 of the revised DPA) is intended to be based on competitive considerations. However, no exemption shall be granted as regards intra-group disclosure in general.

Thus, the Council of States is asked to clarify the above issues before the final draft can be approved by both chambers of parliament. A final draft of the revised DPA may be available by the end of this year or early next year.