Jusletter IT

As technology advances, so does the law; slowly, but eventually it does. And when it does, it may on occasion also lead to a technology-driven legal paradigm shift.

Such a paradigm shift took place in Switzerland on January 1^st, 2016. As of this year, the electronic versions of the official federal publications («Bundesblatt» [BBL]¹, «Amtliche Sammlung» [AS]² and «Systematische Sammlung des Rechts» [SR]³) are published online. They replace their printed versions as authoritative sources of law (Art. 1a PublA⁴). This means that in the event of a discrepancy between the electronic and printed version of an official federal publication the electronic version prevails. Note, however, that if there is a discrepancy among the electronic official federal publications themselves, the AS, i.e. the chronologic publication, still prevails as it did prior 2016. This order of precedence takes place despite the SR, i.e. the systematic publication, being the more practical and popular source for consulting the law thanks to its consolidation of all chronologic changes up to a cut-off date. Whether a person relying on the electronic version of the SR (rather than the AS), as has been demanded by doctrine on occasion,⁵ may claim legitimate expectations in the authority of such online version is unclear to date and would need to be decided on an individual basis by a court if and once a conflict arose.⁶

The expectations of users have changed. Over the years, the electronic publication of online law changed from having a supplementing function to being an autonomous tool.⁷ Many people seeking legal advice about the law will most likely conduct an online search. And once they find the law online, it is unlikely they will also consult its paper-based version. Electronic publications also support key word searches, which are useful for navigating through the ever growing amount of publications. The online version of the federal publications also offers new features, such as, for instance, language comparison.⁸ So it makes sense that the electronic version of the law be authoritative.

The paradigm shift by the Swiss federal government was necessary and overdue. All cantons offer their official publications online. In some cantons⁹ the electronic version of the law already prevails.¹⁰ In other cantons the paper-based and online versions as well as the chronologic and systematic versions of the law are offered in parallel without a clear indication which version prevails. From a constitutional viewpoint this seems problematic.¹¹ In the EU, the authoritative version of the official journal has been published in electronic form since 2013.¹²

Relying on electronic information requires technical (and organisational) measures. The authenticity¹³ and integrity¹⁴ of the official federal publications must be preserved (Art. 16a PublA and art. 43 PublO¹⁵). Hence, the official publications are vested with an electronic signature¹⁶, which can be validated on the website validator.ch.

Daniel Ronzani