The draft bill on the modernisation of the Commercial Register does not contain any provision that enshrines the “right to be forgotten”. The Swiss Federal Commercial Registry Office concluded from the results of the pre-parliamentary consultation process that no special rules were needed for publishing data on the Internet. This is a regrettable decision.
In our 20th Report on Activities, we expressed our opinion about the planned changes to the Commercial Register (section 1.8.4, in German). We said that we welcomed the fact that the Federal Commercial Registry Office (FCRO) had included a provision in the draft consultation paper establishing a right to be forgotten adapted to the requirements of the Commercial Register. The pre-parliamentary consultation procedure was concluded during the year under review.
Based on the results of that process, the FCRO has concluded that it will not consider banning the free access to data from the Commercial Register after a certain amount of time has elapsed. Five of the parties involved in the consultation process had argued that publications on the Internet should not be subject to any special rules. We cannot agree with that position. In our view, a distinction must be made between the physical recording of the data in the Commercial Register and the way in which the content is made public.
In several meetings as well as in various opinions, we drew the FCRO's attention to the problem of allowing data from the Commercial Register to be accessed for an indefinite period of time. The problem has even been exacerbated by the decision of some of the cantonal Commercial Registers to publish on the Internet all documents in exactly the manner in which they were submitted retroactively. Thus, for example, the private addresses of members of Boards and excerpts from minutes, which contain extremely sensitive personal data such as passport and ID numbers, are now freely available to the public at large.
We deeply regret the approach taken by the FCRO, all the more so as the practices of the private credit reference agencies will tend to make the problem even more acute. We have addressed the issue of the publication of civil status data on the Internet in our most recent Report on Activities in section 1.2.10 (in German).
Furthermore, the social security number will forthwith be used as an identifier in the Commercial Register. Even though it will only be accessible within the government agency, the use of the number does raise a number of data protection issues (see also section 1.5.3 of the present Report on Activities, in German).