What are the Differences Between GDPR and FADP

1. Geographical Scope and Applicability

• GDPR: The GDPR applies to organizations operating within the EU as well as those outside of the EU that offer goods or services to EU citizens or monitor their behavior. This extraterritorial scope ensures that any company dealing with EU citizens’ data, regardless of its location, must comply with GDPR standards.

• FADP: The FADP applies specifically to entities operating within Switzerland. Unlike GDPR, its scope is limited to organizations based in Switzerland or those processing personal data within the country. However, similar to GDPR, FADP also affects international companies that process Swiss residents’ data.

2. Data Subject Rights

• GDPR: The GDPR provides extensive rights to individuals, including the right to access, rectify, erase, and port their data, as well as the right to object to processing or restrict processing. It also grants the right to be informed about automated decision-making and profiling.

• FADP: The revised FADP mirrors many of the GDPR’s rights, such as the right to access, rectification, and deletion. However, it does not include a direct right to data portability or the right to object to automated decision-making, making it slightly less comprehensive in this aspect.

3. Legal Basis for Data Processing

• GDPR: The GDPR outlines six lawful bases for processing personal data: consent, performance of a contract, legal obligation, vital interests, public task, and legitimate interests. Companies must ensure they have a valid legal basis before processing any personal data.

• FADP: The FADP similarly requires a legal basis for processing, but it is more lenient in terms of what constitutes a valid legal basis, especially for processing sensitive personal data. Consent remains a key aspect, but the requirements for obtaining consent are not as stringent as in the GDPR.

4. Data Breach Notifications

• GDPR: Under GDPR, organizations must notify the relevant supervisory authority of any data breach within 72 hours if the breach is likely to result in a risk to the rights and freedoms of individuals. If the breach poses a high risk, affected individuals must also be informed.

• FADP: The FADP introduces mandatory data breach notifications for the first time. Companies must report breaches to the Federal Data Protection and Information Commissioner (FDPIC) “as soon as possible,” without specifying a strict timeframe like the GDPR’s 72-hour window. However, there is a clear expectation of timeliness and transparency.

5. Appointment of Data Protection Officers (DPO)

• GDPR: The GDPR mandates the appointment of a DPO for organizations that process large volumes of sensitive data or engage in regular and systematic monitoring of data subjects. The DPO plays a crucial role in ensuring compliance and acts as a point of contact between the company and regulatory authorities.

• FADP: The revised FADP does not explicitly require the appointment of a DPO, although it encourages organizations to designate a privacy officer. The lack of a mandatory DPO requirement makes compliance simpler for some companies, but it might limit the internal oversight of data protection activities.

6. Cross-Border Data Transfers

• GDPR: The GDPR places strict controls on the transfer of personal data outside the EU, only allowing transfers to countries that provide an adequate level of data protection. Organizations must use safeguards like Standard Contractual Clauses (SCCs) or Binding Corporate Rules (BCRs) to ensure compliant data transfers.

• FADP: The FADP has similar requirements for cross-border data transfers, emphasizing that personal data should only be transferred to countries with adequate data protection standards. The FDPIC maintains a list of countries deemed adequate, and organizations can use similar safeguards to GDPR, such as SCCs and BCRs.

7. Penalties for Non-Compliance

• GDPR: Non-compliance with GDPR can lead to substantial fines—up to 20 million euros or 4% of the global annual turnover, whichever is higher. These high penalties are designed to enforce strict adherence to data protection principles.

• FADP: The FADP’s penalties are less severe compared to GDPR. The maximum fine for non-compliance is CHF 250,000, and fines are usually imposed on responsible individuals rather than the organization itself. This approach differs from the GDPR’s emphasis on organizational accountability.

8. Risk-Based Approach and Documentation

• GDPR: GDPR requires a comprehensive approach to managing data protection risks, including Data Protection Impact Assessments (DPIAs) for high-risk processing activities. Organizations must document their processing activities and demonstrate compliance.

• FADP: The FADP also adopts a risk-based approach but is less prescriptive about DPIAs. While DPIAs are encouraged for high-risk processing activities, the law is less detailed in specifying when they must be carried out compared to GDPR.

Final Thoughts

While the GDPR and the FADP share many similarities, the GDPR remains more stringent and comprehensive in certain areas, such as data subject rights, breach notifications, and penalties. However, the FADP’s alignment with GDPR helps ensure that Swiss organizations can operate smoothly within the EU’s data protection framework, promoting trust and facilitating cross-border data flows.

For organizations operating in both jurisdictions, implementing a GDPR-compliant data protection framework can help meet the requirements of both regulations, ensuring seamless compliance and reducing the risk of data protection breaches.