Legal opinions and studies

The ITSL conducts (fundamental) research on digitisation topics with an interdisciplinary approach. It examines the interactions among developments in information technology, associated changes in society and the legal system. These activities focus on specific research areas in which research projects are carried out with third-party and university funding.

The ITSL is also active in consultancy and thus strongly anchored in practice. This enables its own research to be measured against practice, where problems are often connected to fundamental questions for which interdisciplinary research is key. These practical activities of the ITSL can be divided into the areas of commissioned research and legal opinions. 

The competence centre prepares legal opinions for companies and public authorities on legal issues and on the implementation of regulatory requirements.

The expert opinion Protection against Algorithmic Discrimination with Particular Consideration of Racial and Gender Discrimination (2025), prepared on behalf of the Federal Commission for Women’s Issues (FCWI) and the Federal Commission against Racism (FCR), analyses the existing legal framework in Switzerland for protection against algorithmic discrimination, in particular racial and gender-based discrimination. A central objective of the study is to identify any need for legislative or other action, and to outline concrete measures for improving protection against algorithmic discrimination.

Further information (PDF, 2 MB) (in German)

A report prepared on behalf of educa.ch analyses the possibilities for the secondary use of personal data within the education system. An assessment of the permissibility of secondary used was performed on the basis of three use cases, and drew on expertise gained through our work on the development of a data-use policy.

Further information can be found at : educa.ch, Legal Analysis on the Secondary Use of Data (in German)

On behalf of educa.ch, the ITSL prepared a report titled “Legal Overview on the Development and Use of AI in the Swiss Education Area”. The report examines the use of AI systems in various areas of the education system, with a focus on legal issues, in particular data protection law.

Further information can be found here (in German) : https://www.educa.ch/de/news/2024/rechtliche-auslegeordnung-zu-ki-im-bildungsraum (German)

At the end of 2024, the ITSL was commissioned by the ETH Domain Institutions to examine the legal issues related to open research data. The analysis focused on identifying legal barriers to an open research data strategy.

On behalf of the Swiss Federal Institute of Intellectual Property (IPI), the ITSL conducted a jurisprudential study in spring and summer 2020 titled “Ownership, possession and use of non-personal data”. The aim was to analyse the then-current legal context in Switzerland and the EU, and to comment on possible future legal developments, in particular the creation of a property right in data or databases.

Against this background, the study comprehensively examines the question of how data is allocated to various legal entities (e.g. companies and private individuals, but also the state) de lege lata when it should be allocated de lege ferenda. This broad perspective also covers the legal protection of a de facto allocation of data, in particular through secrecy, and data allocation through contracts.

Along with other contributions, the aforementioned study forms the basis for the preparation of a report by the IPI to the Federal Council dated 18 August 2020.

Further information (in German):  (PDF, 983 KB)

The Federal and Cantonal Agency for Education (educa.ch) is investigating the impact of digitisation on education in order to provide basic documents to decision makers in the education sector.

In 2019, educa.ch initiated work to develop perspectives for a future data-use policy in education. Within the framework of this work, the ITSL wrote a technical paper for a publication on data-use policy for the Swiss education area.

On behalf of the Swiss Bar Association, the ITSL prepared an expert opinion in the summer of 2018 on the use of cloud services by lawyers. The results were presented in November 2018 at the Conference of Presidents of the Cantonal Bar Associations. The expert opinion was translated into French and published in 2019 as a bilingual volume in the ITSL book series. 

The expert opinion examines whether and under what conditions lawyers working in Switzerland are allowed to use cloud services for processing, storing and archiving documents and other files in the course of their professional activities. This clarifies an issue that has been of great concern to the legal profession in Switzerland in recent years.

In June 2018, the ITSL was commissioned by the AEGLE consortium to analyse the legal framework in Switzerland for the use of big data analytics in the healthcare sector. The AEGLE consortium is a research project co-funded by the Horizon 2020 funding programme, which aims to establish a European big data analytics platform for the analysis of health data for treatment and research purposes. Health data already enjoy special legal protection in Europe under the Council of Europe's Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (SR.0.235.1). In Switzerland, research with health data is regulated by the Human Research Act, the Data Protection Act and other special decrees. Accordingly, the correct handling of health data in connection with big data analytics is very strict. The ITSL wrote a country report that gives users of the AEGLE platform a concise overview of the legal requirements to be met when analysing Swiss health data.

Bericht (Englisch)

The ITSL supports the State Chancellery of the Canton of Zurich in connection with the creation of a legal basis for electronic commerce.

DigiLex is a project of the impulse program (IP2.1 creating legal bases for electronic commerce) for the implementation of the Digital Administration Strategy 2018–2023 (RRB No. 390/2018) adopted by the Government Council. The project is being implemented under the leadership of the State Chancellery with the Directorate of Justice and Home Affairs. The goal is to create a general legal basis to promote electronic commerce and accelerate its widespread dissemination.

The ITSL contributed to the preparation of a report and had previously evaluated possible fields of action, including principles and regulation topics, in workshops with representatives of the cantonal administration. These fields of action were validated in interviews with external stakeholders, including courts, data protection officers and egovpartner. In addition, several members of the ITSL work as a sounding board for the project.

In July 2017, the Federal Office of Justice and the Federal Office of Communications commissioned the ITSL to examine whether the legislator should take action to promote the use of personal data under the control of the data subjects, in particular in the context of personal information management systems (PIMS), and whether data portability should be regulated in Swiss law, as it is in the EU.

The expert report was included in the Digital Switzerland Strategy, by which the Federal Council intends to promote an action plan to exploit the opportunities of digitisation in Switzerland.

Expert opinion (PDF, 1 MB) (in German)

In September 2016, the ITSL and the Communication Systems Group of the University of Zurich were commissioned by SWICO to prepare a report on network blocking. This report examines the technical options available for blocking, their effectiveness and whether the introduction of blocking is legally permissible under the Swiss Money Gambling Act.

Based on the fact that with today's technical possibilities blocking can be handled easily and without prior technical knowledge, the expert opinion questions the suitability of blocking to achieve the goals of the legislator. The results of the expert opinion were presented in December 2016 at an open hearing of the Parliamentary Group on Digital Sustainability (ParlDigi) in the Federal Parliament in Bern, and controversially debated with representatives from politics and business.

Expert opinion (PDF, 436 KB) (in German)