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Old 23.11.2016, 10:43
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Vicarious liability under Swiss Law

Hi,

I do not live in Switzerland, but I work as a freelancer for a Swiss company and I have a question about vicarious liability.

As I said, I am a freelancer based overseas. The Swiss company has no local office here and no legal representation.

I have a contract with the Swiss company to provide certain information that they distribute digitally to their clients. I do not know their clients, but I think they are based in other countries.

I am being acused of breaching the local law because the activities done by the Swiss company's clients are highly regulated in this country. They believe there is enough circumstancial evidence to indict me. I am facing a criminal fine and even jail time in the worst case scenario.

The Swiss company offered some help but it seems they now just want to walk away and leave me alone facing the legal consequences. They simply say that -since I am a freelancer- I should face all the consequences.

It's a messy case... But the purpose of this message is to see if anyone could give me some hints on these:

- Vicarious Liability under swiss law: does it exist? Which document regulates this?

- How can I file a complain against this company?
(I found a thread about consumer compains but not about Labour complains)

Thank you.
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Old 23.11.2016, 11:08
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Re: Vicarious liability under Swiss Law

Code of Obligations and other associated laws and regulations:
https://www.admin.ch/opc/de/classifi...ion/22.html#22

In the Code of Obligations the relevant part starts at Art. 41 (specially read Art. 55)
https://www.admin.ch/opc/en/classifi...index.html#a41


Considering you breached local (Japanese) and not Swiss law, considering you were not an employee, and considering you did not contractually forbid the use of your work for certain purposes: Your problem.
And even if you were an employee, your local laws still applies. Specially for the criminal part.

Last edited by aSwissInTheUS; 23.11.2016 at 12:01.
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Old 23.11.2016, 11:52
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Re: Vicarious liability under Swiss Law

Good user name.....
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Old 23.11.2016, 11:57
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Re: Vicarious liability under Swiss Law

I got a bit confused with all your "this country" "local country" stuff whilst talking about Japan, Switzerland and "other countries".

Do I understand rightly that you have given information to a Swiss company that then gives it to other companies worldwide, but this information distribution is not allowed under Japanese law?

If that's the case, then I can't see any way it could be anyone's fault apart from yours. In other words, I agree (as usual in these types of matters) totally with what aSwissInTheUS said.
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Old 23.11.2016, 14:21
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Re: Vicarious liability under Swiss Law

Thank you for the links. Couldn't find anything regarding vicarious liability though. I have no idea how this applies to Swiss Law. I know in UK, US and other countries a company can be found vicariously liable when someone working for it does something unlawful (while performing the tasks assigned by this company). Liability is stronger when it's a regular employee but in many cases applies to freelancers, part timers or even volunteers.

The case is very messy but I'll try to explain. Please read only if you are really curious

1. The Swiss company advertised a Freelance position for people living in Japan. The job consisted of providing live information of Volleyball matches (score, faults, etc.) through their Smartphone app.

2. I applied, learned how to use the app, passed their training and signed the contract.

3. They didn't tell me anything about their clients but looking at their website I saw they target betting sites. They also work for newspapers or search engines. But I don't know who is my data going to. As far as I am concerned, it goes to the Swiss company. They supervise and monitor my job and provide it to their clients.

In any case, I think they offer services to countries or states where betting is legal. So let's say tonight there is a Basketball match in NY (where betting is illegal). They still provide live statistics from the venue in NY to their clients who are legal betting sites in their States (let say Nevada).

4. I wrongly assumed they had a legal set-up in Japan, based on the size of the company and the business partners they have worldwide (big institutions, national leagues, even international authorities...).

5. They invited me to cover a match and I accepted. I went to the venue and reported the live statistics from the match.

6. During the match a security guard took me out. I was reported to Police and they asked me what I was doing. I explained as much as I knew of my job and the company but I couldn't say who were the clients cause I didn't know myself. Based on the Swiss website, Prosecutor assumed the clients were betting sites.

7. Betting is illegal here and there's a Law that punishes whoever provides information to betting sites other than the only authorised entity in Japan.

8. They seized my phone and indicted me.

9. The Swiss company was surprised by this extreme reaction initially and got a Law Firm in Japan to take care of the case. However, they don't seem to be willing to go any further.

10. During a call with the Swiss company they told me they don't provide data to Japanese companies and that their only partner in Japan is the institution recognized by the Japanese Law.

11. However I suspect -based on their reaction- that during my match they were providing the info overseas and not to the Japanese institution.

......

I understand I am in a weak position but I can't understand how I can be the only one liable for the global business operations of a multimillion dollar company. I am a freaking freelancer, not the CEO!

They work with the same scheme worldwide and I don't wish this to happen to anybody else, so regardless of what happens to me I want to report this to the authorities in Switzerland.
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Old 23.11.2016, 14:42
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Re: Vicarious liability under Swiss Law

Personally, I would forget about what Swiss law has to say about this, it looks like you personally have broken the law in Japan, spend energy and money with a lawyer to see if you can mitigate the damage there.

I've seen quite a few adverts online looking for people to go to sports venues and provide live stats, my first reaction is that it sounds dodgy, at the least. In fact I seem to remember a guy on here a couple of years ago looking for people to go to sports matches in CH and if my memory serves me right, he got short shrift from most of us.

Maybe do an internet search to see if there have been any similar cases to yours in Japan, it might give you some hope. Good luck
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Old 23.11.2016, 14:59
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Re: Vicarious liability under Swiss Law

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Thank you for the links. Couldn't find anything regarding vicarious liability though. I have no idea how this applies to Swiss Law. I know in UK, US and other countries a company can be found vicariously liable when someone working for it does something unlawful (while performing the tasks assigned by this company). Liability is stronger when it's a regular employee but in many cases applies to freelancers, part timers or even volunteers.

[...]

I understand I am in a weak position but I can't understand how I can be the only one liable for the global business operations of a multimillion dollar company. I am a freaking freelancer, not the CEO!

They work with the same scheme worldwide and I don't wish this to happen to anybody else, so regardless of what happens to me I want to report this to the authorities in Switzerland.
Did you read Art. 55 of the Code of Obligations? It fits your case, because from your description you could be seen as an empolyee.
For reference here Art. 55
Quote:
Liability of employers

1 An employer is liable for the loss or damage caused by his employees or ancillary staff in the performance of their work unless he proves that he took all due care to avoid a loss or damage of this type or that the loss or damage would have occurred even if all due care had been taken.1

2 The employer has a right of recourse against the person who caused the loss or damage to the extent that such person is liable in damages.
It means the liability is shifted from the emplyee to the employer.

Just a simple tiny problem. This only appies to all the stuff which relates to Swiss law. But you have a problem with Japanese law. You have to find a clause in the Japan law which shifts the liability from you to your company. Maybe there is, which is the reason you no longer get supprt from them.

Also you would not be the first employee of a Swiss company dropped like a hot potato once legal issues arise aboard. Crypto AG and UBS are prime examples.

Additionaly, to any criminal proceedings there may also be civil lawsuit from the match operator. Did you read all terms and conditions which came with the entry ticket that such live reporting is allowed and not forbidden?
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Old 23.11.2016, 15:03
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Re: Vicarious liability under Swiss Law

You have a defence (whether or not it is a good one is a different matter). You were (assuming you were) misled into believing that the information you were providing was legal. It is not the case that you did not know the law in Japan (ignorance of law = no defence), but you genuinely believed that the data you were providing would be used for (some purpose) that is not illegal anywhere , not only in Japan.

Also, if you have a good track record and good references and are of good character and on law income, and this is a first time offence, you may get a suspended sentence plus a penalty - again I do not know the laws in Japan, but this would happen in most European countries.

Best of luck, lawyer or not, you can defend yourself personally as well.

All the best
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Old 23.11.2016, 15:37
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Re: Vicarious liability under Swiss Law

Dunno if this helps but in England this stuff is also used for just in time gambling. A poor student in Newcastle was killed no less over it. You could be providing score updates fractionally faster than markets update and so clever gambling types have used people at live events to get fractionally ahead of the market and beat the betting system.
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Old 23.11.2016, 15:41
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Re: Vicarious liability under Swiss Law

This may be a silly question, but how will the prosecutor prove that you were doing something illegal if he doesn't know who the final recipients are? Even more so if(!) communication was encrypted - it was, wasn't it? Isn't Japanese law also based on "in dubio pro reo", innocent until proven guilty?
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Old 23.11.2016, 15:41
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Re: Vicarious liability under Swiss Law

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Dunno if this helps but in England this stuff is also used for just in time gambling. A poor student in Newcastle was killed no less over it. You could be providing score updates fractionally faster than markets update and so clever gambling types have used people at live events to get fractionally ahead of the market and beat the betting system.
IIRC there was a case in Australia with someone being charged with the same thing at the Tennis championship.

It is called courtsiding - and unsurprisingly is now under scrutiny.
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Old 23.11.2016, 16:10
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Re: Vicarious liability under Swiss Law

Kaputt, 2 things in your last post stick out :-

1) ...found vicariously liable when someone working for it....

You don't work for them you are freelance, what you do is your concern, not theirs, how you achieve your objectives is your problem not theirs.


2) I wrongly assumed they had a legal set-up....

Not your problem, you don't work for them, you are independant, freelance, chose as you wish, free from the contraints of regular employment.

YOU ARE INDEPENDANT/FREELANCE, you make your own decsisions now and live with the consequences. The Swiss company are not going to help you, you're on your own, sorry.
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Old 23.11.2016, 16:56
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Re: Vicarious liability under Swiss Law

One could say the OP is "Japanned"
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Old 23.11.2016, 17:30
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Re: Vicarious liability under Swiss Law

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One could say the OP is "Japanned"
Or Kaputt
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Old 23.11.2016, 17:40
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Re: Vicarious liability under Swiss Law

This forum is fantastic. I wasn't expecting this type of reaction and the qulity of interventions. Thank you so much! It means a lot to me.

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Personally, I would forget about what Swiss law has to say about this
The reason why I want to know the Swiss Law is to have some barganing power with this company. I know there's little I can do to implement the Law it but at least they won't fool me. Thank you for the good wishes.

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You have to find a clause in the Japan law which shifts the liability from you to your company. Maybe there is, which is the reason you no longer get supprt from them.
This makes sense. And yes, in Japanese law employers can be liable for employees actions. But how likely it is that they drop my case to go against a company based in Switzerland? I will check this with a free legal adviser I got. It seems like a key point.

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This may be a silly question, but how will the prosecutor prove that you were doing something illegal if he doesn't know who the final recipients are? Even more so if(!) communication was encrypted - it was, wasn't it? Isn't Japanese law also based on "in dubio pro reo", innocent until proven guilty?
Yes, but he believes there is enough circumstancial evidence against me. When you open the company's site they do state they provide services to betting companies. And betting is generally illegal here (except that one institution), so that's why they may have thought so. I hope by giving them info about the links between XXXX AG and that institution could help me.

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IIRC there was a case in Australia with someone being charged with the same thing at the Tennis championship.

It is called courtsiding - and unsurprisingly is now under scrutiny.
Thanks!! I was looking for similar cases to see what to expect and what to do but couldn't find anything. I see they eventually dropped the charges against him. Not sure if I should expect the same treatment here. In any case, I didn't have my phone on my underwear, lol.


Quote:
Kaputt, 2 things in your last post stick out :-

1) ...found vicariously liable when someone working for it....

You don't work for them you are freelance, what you do is your concern, not theirs, how you achieve your objectives is your problem not theirs.


2) I wrongly assumed they had a legal set-up....

Not your problem, you don't work for them, you are independant, freelance, chose as you wish, free from the contraints of regular employment.

YOU ARE INDEPENDANT/FREELANCE, you make your own decsisions now and live with the consequences. The Swiss company are not going to help you, you're on your own, sorry.

Thanks for your comment. I understand your skepticism but....

1. Yes and no. I understand they don't care about me personally but they should care about their reputation. Being linked to a criminal case is not a small thing for a corporation that prouds itself in having partnerships with Sports Associations around the world. Even with Police!

2.


I think you are wrong on this. I have credentials signed by them literaly stating that I work for them. See:


Re: Live Data Gathering
Dear Sir/Madam,
XXXXX AG is a sports data agency which provides its service to media companies and the bookmaking industry (state owned lotteries and private companies).
XXXXX AG is a service provider for sports data and not a betting company.
This letter is to confirm that Mr. KAPUTT who is approved by his/her passport or national ID card is working as a Live Operator for XXXXXX to collect data from this sport event (match details here).
For further information please contact XXXXX AG.

Quote:
"You make your own decissions and you suffer the consequences"
Yes, but the question is: shall I suffer the consequences of the actions taken by the company using my information? Let's say (just imagine) this company sold the data to the Italian Mafia. Do you think it would be fair for me to be treated as I have direct ties to Italian mafia?

Maybe indirectly, but shouldn't the company be held accountable for what they do with the information I provide to them? That's called vicarious liability. http://www.acas.org.uk/index.aspx?articleid=3715


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Also, if you have a good track record and good references and are of good character and on law income, and this is a first time offence, you may get a suspended sentence plus a penalty - again I do not know the laws in Japan, but this would happen in most European countries.
You are right. Actually, the maximum punishment for this would be 3 years in jail but they seem to be more inclined to fine me. The fine will be probably much much lower than the cost of a lawyer in court but my main concern is having a criminal record. And the fact that this company can get away with it.
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Old 23.11.2016, 17:49
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Re: Vicarious liability under Swiss Law

It doesn' actually say you work for them, it says you work as a live operator to collect dats.

The key to this, is in the wording, and my guess is they are astute enough to word it in their favour.

As for their reputation............you really think they care, and in any case are you big enough to make them fart, that's the real question you need to answer, if so, go ahead, if not, you're losing your time.

How is Japanese law going to be applied to a company registered and based in Switzerland with no legal business in Japan going to help ?
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Old 23.11.2016, 18:33
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Re: Vicarious liability under Swiss Law

Really? It literally says: My name is working as Job Title for Name of their company to do job description

Let me rephrase it:

"This letter is to confirm that Mr. Kaputt is working as a bodyguard for Vladimir Putin to to protect him during his visit to Geneva (9am to 11 am, Nov 25th 2016)". Signed: Vladimir Putin.

Would you think I work for Putin or not?

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Old 23.11.2016, 18:35
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Re: Vicarious liability under Swiss Law

Quote:
It doesn' actually say you work for them, it says you work as a live operator to collect dats.

The key to this, is in the wording, and my guess is they are astute enough to word it in their favour.
From the part quoted I would say a Swiss court would see it as an employment contract. Specially as the company sent him to specific games.

But as said many times. It does not matter what Swiss law or courts will or would or shall say. This is a Japanese thing only.

PS: Do you get a criminal record for fines in Japan? In Switzerland, the fine must be CHF 5000 (~JPY 500 000) or higher.
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Old 23.11.2016, 18:37
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Re: Vicarious liability under Swiss Law

I think the problem is just a simple one. What you did is probably forbidden regardless of where the data went. Neither you or the company that provided the app had the right to collect the data and pass it on in this way.

I guess the company knows this and that is why it is based in Switzerland where they are pretty safe.

What's the company website?
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Old 23.11.2016, 18:53
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Re: Vicarious liability under Swiss Law

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I think the problem is just a simple one. What you did is probably forbidden regardless of where the data went. Neither you or the company that provided the app had the right to collect the data and pass it on in this way.
A) Forbidden by terms and conditions of the event. Which is a civil law matter.
B) Forbidden by the law of the country. Which is a criminal law matter.

A costs you money. B can get you in jail and a criminal record.
Right now OP has a B problem, and may get an A problem as well.

PS: It is not forbidden in anyway in sense of B in Switzerland.
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