Electronic marketing practices must comply with the provisions of the Swiss Federal Act Against Unfair Competition (UCA).

With regard to the sending of unsolicited automated mass advertisement (which, in addition to emails, includes SMS, automated calls and fax messages), the UCA generally requires prior consent by the recipient, i.e., 'opt-in'. As an exception, mass advertisings may be sent without the consent of the recipient:

• If the sender received the contact information in the course of a sale of his/her products or services;
• if the recipient was given the opportunity to refuse the use of his/her contact information upon collection (opt-out); and
• if the mass advertising relates to similar products or services of the sender.

In addition, mass advertising emails must contain the sender’s correct name, address and email contact and must provide for an easy-access and free of charge ‘opt-out’ from receiving future advertisements.

The UCA generally applies to business-to-consumer as well as to business-to-business relationships, i.e., mass advertisements sent to individuals and to corporations are subject to the same rules.

Direct marketing by telephone is not per se impermissible in Switzerland as long as it is not done in an aggressive way (e.g., by repeatedly calling the same person). However, the UCA prohibits direct marketing by telephone:

• If the recipient is not listed in the Swiss telephone directory or if the recipient is listed in the Swiss telephone directory, but has indicated that he/she does not wish to receive advertising from persons with whom he/she has no business relationship; or
• if the caller is not calling from a telephone number that (i) is listed in the Swiss telephone directory, (ii) is shown when calling, and (iii) he/she is entitled to use.

In order to enforce the above criteria, the UCA not only sanctions the violation of these principles, but also the use of information that has been obtained in violation thereof (e.g. someone using the information obtained from non-compliant call centres). An intentional violation can be sanctioned with a custodial sentence of up to three years or a monetary penalty.

In addition to the rules of the UCA, the general data protection principles under the DPA also apply with regard to electronic marketing activities, e.g., the collection and maintenance of email addresses or processing of any other personal data.