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.