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In brief

On 9 November 2023, the Federal Data Protection and Information Commissioner (“Commissioner“) issued a statement on AI-supported data processing.

The Commissioner’s main message is that the Swiss Data Protection Law is formulated in a technology-neutral manner and is, therefore, also directly applicable to AI-supported data processing.

  • The Commissioner draws the attention of manufacturers and providers of AI applications to the legal obligation to ensure that the data subjects whose data is processed have the highest possible degree of digital self-determination as early as the developing and planning phase.
  • Manufacturers and providers of AI applications must make the purpose, functionality and data sources of AI-based processing transparent.
  • In the case of intelligent language models that communicate directly with users, users have a legal right to know whether they are talking to a machine and whether the data they enter is being processed to improve the self-learning programs or for other purposes.
  • AI-supported data processing with high risks is permitted in principle under the Swiss Data Protection Law, but it requires appropriate measures to protect the potentially affected data subjects.
  • Applications that aim to undermine privacy and digital self-determination are prohibited under the Swiss Data Protection Law. This refers in particular to AI-based data processing that can be observed in authoritarian states, such as comprehensive facial recognition in real time.

Johanna Moesch is an associate in the Firm’s Intellectual Property Practice Group in Zurich. Prior to joining Baker McKenzie she worked as an associate and senior associate in a major Zurich law firm and prior thereto as a law clerk in a Swiss district court. She was also a tutor and student research assistant at the University of Basel in the fields of public and private law. Johanna obtained a LL.M. degree from the Tsinghua University (Beijing). She is a member of the International Association of Privacy Professionals (IAPP) and since January 2021 a Certified Information Privacy Professional/Europe (CIPP/E).


Alessandro Celli’s broad experience includes technology-related transaction work, intellectual property and competition law, IT, data protection and cyber risk, commercial litigation, sports and entertainment law. Alessandro regularly advises Swiss and international clients on technology-related national and cross-border transactions (JVs, licences, distribution, sale and purchase of technology or related businesses and brands). He counsels on sourcing and data protection, competition law and business restructuring as well as sports and entertainment law in relation to media or sponsoring. As a member of the IP and Disputes practice groups, Alessandro is leading the IT/C (TMT) team in our Zurich office. His actual focus lies primarily on new technologies and business processes within a digitalized global economy and the associated legal and compliance challenges. His work has been increasingly determined by co-operational (sourcing) work as well as regulatory items involving the rapidly developing new technologies with a large impact also on the financial services sector. Alessandro has chaired the committee on legislation and practice at the Zurich Bar Association and is a member of the boards of selected Swiss companies.

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