B2B marketing in Switzerland: what the UWG allows

Switzerland regulates advertising to businesses in the Federal Act against Unfair Competition (UWG). The rules differ from other countries, especially for the telephone. This overview quotes the statutory text (our translation of the German version); it does not replace legal advice for your specific campaign.

Email, SMS and fax: consent first

A person acts unfairly who “sends mass advertising by telecommunication that has no direct connection with requested content, or causes such messages to be sent, and fails to obtain the customers’ prior consent, to state the correct sender or to point out an easy and free option to refuse” (Art. 3 para. 1 let. o UWG).

The law speaks of “customers” and does not distinguish between consumers and businesses. A purchased address list does not change this, and an email address published in a legal notice is mandatory information (let. s), not consent to advertising. The only exception concerns your own customers: anyone who receives contact details in a sale and points out the option to refuse may send these customers mass advertising for their own similar offers without consent.

Phone: the asterisk marking decides

A person acts unfairly who “disregards the note in the telephone directory that a customer does not wish to receive advertising messages from persons with whom they have no business relationship and that their data may not be passed on for direct marketing; customers without a directory entry are treated in the same way as customers with an entry and the note” (Art. 3 para. 1 let. u UWG).

Three practical rules follow from this:

• Sales calls are allowed to numbers listed in the telephone directory without an asterisk.
• Treat numbers that are not listed in any directory like numbers with an asterisk. This affects many mobile numbers.
• The asterisk also prohibits passing on the data for direct marketing. Anyone selling you numbers with an asterisk for telephone marketing is acting unfairly themselves.

In addition, the caller number must be displayed: sales calls without a displayed number that is listed in the directory and that you are entitled to use are unfair (let. v). And anyone using information obtained through an infringement of let. u or v also acts unfairly (let. w).

Letter: allowed, with respect for objections

The UWG does not require consent for addressed advertising letters. Direct mail is therefore the legally simplest channel for first contact with companies in Switzerland. For sole proprietorships and named contact persons the Data Protection Act applies, because it protects personal data of natural persons (Art. 2 FADP). Processing data against the express wishes of the person concerned infringes their privacy (Art. 30 para. 2 let. b FADP). So keep a suppression list and respect objections.

Purchased data and the duty to inform

Anyone who does not collect personal data from the person concerned must generally inform them no later than one month after receipt, among other things about identity, purpose and categories of data (Art. 19 FADP). The duty lapses, for example, if informing is impossible or requires disproportionate effort (Art. 20 FADP). Whether an exception applies is for you to check for your campaign; in an advertising letter, the information can often be given directly in the letter.

Penalties

Anyone who intentionally commits unfair competition under Art. 3 is liable, on complaint, to a custodial sentence of up to three years or a monetary penalty (Art. 23 UWG). A complaint may be filed by anyone entitled to bring a civil action, in particular those affected, customers and certain associations; the Confederation has the rights of a private claimant in the proceedings.

What this means for a company list

A list for the Swiss market is mainly useful for postal mailings, CRM maintenance and market analysis; telephone prospecting additionally requires a check against the asterisk marking. Email addresses serve matching and the care of existing customer relationships. kontaktdatenbank.ch currently delivers phone numbers only as “not checked”, so not for telephone marketing; what else to watch out for when buying is covered in the article Buying Swiss company addresses.

Frequently asked questions

Is B2B email advertising allowed in Switzerland without consent?

No, if it is mass advertising. Under Art. 3 para. 1 let. o UWG the sender needs the customers’ prior consent; the law does not distinguish between private individuals and businesses. The exception is advertising for your own similar offers to customers whose contact details you received in a sale, provided you pointed out the option to refuse.

May I call companies I do not know?

Yes, if the number is listed in the telephone directory without the asterisk marking. You may not call numbers with an asterisk or numbers without a directory entry for advertising (Art. 3 para. 1 let. u UWG). You must also call from a displayed number that is listed in the directory (let. v).

Do I need consent for advertising letters to companies?

The UWG does not require prior consent for addressed advertising letters. For sole proprietorships and named individuals, however, the Data Protection Act applies: you must respect an express objection (Art. 30 para. 2 let. b FADP).

What are the penalties for infringements?

Anyone who intentionally commits unfair competition under Art. 3 UWG is liable, on complaint, to a custodial sentence of up to three years or a monetary penalty (Art. 23 UWG). Civil claims are possible as well.