> Source: https://souverana.ch/insights/revdsg-ki-en/
> Language: en

# revFADP and AI: what the law actually requires

The fine of up to CHF 250’000 falls on the person who approved the tool, and only exceptionally on the company. That makes the approval a matter for management.

Guide · Published 4 Aug 2026 · Updated 21 Oct 2026 · Joel Barmettler

## What does the revFADP require for AI use?

**Fines of up to CHF 250,000 under the revised Federal Act on Data Protection (revFADP) fall on the person who approves an AI tool within the company, and only exceptionally on the company itself. The Act never mentions AI, yet it requires, as for any other processing, a purpose, a contract, security, transparency and, at high risk, an impact assessment.**

**In brief**

-   Companies have probably already met four of the five requirements without thinking of AI. The check is still worthwhile, because the fine falls on you personally if you approve a tool.
-   Whoever holds oversight in the company can also be liable for what subordinates do: if they intentionally or negligently fail to prevent a breach. It is not enough that they did not give any instructions themselves.
-   Check the subscription tier before you approve a tool. The provider’s assurances on confidentiality and on training with your data are missing from consumer subscriptions, even at the same providers.
-   A chat tool for drafting text does not need an impact assessment. That only becomes necessary with high-risk profiling (automated evaluation of individuals) or the large-scale processing of especially sensitive data, such as health data.
-   Record who approved which tool. Without a name, it is hard to establish in an incident who directed the process.

Few people who decide on AI tools know one quirk of Swiss data protection law: the fines under Articles 60 to 63 are directed at the person who acted within the company, not at the business itself.[1] That makes the question of who approves a tool, and on what contractual basis, a matter for management.

Most offences are prosecuted only on complaint. The cantonal prosecution authorities have jurisdiction, and the Federal Data Protection and Information Commissioner (FDPIC) can file a criminal complaint. Prosecution becomes time-barred after five years.

This article expands on a section of our overview of Swiss AI rules, the [regulatory map](https://souverana.ch/insights/ki-regulierung-schweiz/). Souverana is not a law firm. In sensitive cases, you should involve legal counsel.

This is the second part of our series on law and regulation. The revFADP is the law against which almost every Swiss AI initiative is measured.

**Series · Law & Regulation**

1.  [AI regulation in Switzerland: what already applies](https://souverana.ch/en/insights/ki-regulierung-schweiz/)
2.  revFADP and AI: what the law actually requires (this part)
3.  [Professional secrecy and AI: what may go to the cloud](https://souverana.ch/en/insights/berufsgeheimnis-cloud/)
4.  [AI governance: one page is enough to start](https://souverana.ch/en/insights/ki-governance/)
5.  [EU AI Act Switzerland: role first, then duties](https://souverana.ch/en/insights/eu-ai-act-schweiz/)
6.  [Shadow AI in the workplace: what reduces it](https://souverana.ch/en/insights/schatten-ki/)

## Five requirements, and none of them is new

You have probably already handled four of the five. If you revised your privacy policy in 2023, set up a register of processing activities and signed a data processing agreement with your cloud provider, AI only adds one more tool to these records. The only new thing is the pace at which these tools enter the company, often bypassing procurement altogether.

**A purpose, and proportionality.** Under Art. 6, you process personal data lawfully, in good faith and proportionately. In practice, this means you can state what the AI needs the data for, and you give it no more than that. Anyone who uses a language model to summarise text usually already meets this point.

**A contract with every service provider.** Art. 9 ties the handover to a processor (a service provider that processes data on your behalf) to two conditions and makes intentionally disregarding them a criminal offence. The next section covers this point in detail.

**Adequate security.** Art. 8 obliges controllers and processors jointly to take suitable technical and organisational measures. For AI tools, this means above all: [controlled access](https://souverana.ch/en/insights/souveraene-ki-plattform/) and a provider that can evidence its security.

**Transparency.** Under Art. 19, you must inform the people affected adequately when you collect their data. What this means for your privacy policy follows further down.

**An impact assessment where the risk is high.** Art. 22 requires a data protection impact assessment in advance wherever processing may carry a high risk to personality or fundamental rights.

## The real work sits in the contract

Art. 9 ties the handover to two conditions. First, the provider may only process the data in ways you yourself would be permitted to. Second, no statutory or contractual duty of confidentiality may stand in the way. On top of that comes your duty to satisfy yourself of the provider’s data security.

Whoever intentionally hands over the processing without meeting these conditions is liable to prosecution under Art. 61. Prosecution requires a complaint.[1] The law requires the conditions to be met and prescribes no contract content. The contract is how you meet the conditions and evidence them. Without one, you have no proof from the very first prompt.

For the second condition, law firms, medical practices and hospitals must clarify professional secrecy before signing the contract, and banks must clarify banking client confidentiality under the Banking Act. For everyone else, we check four points for every AI tool, and they belong in the provider contract:

-   **A data processing agreement that covers every function in use.** Providers keep extending their products: what applies to the chat does not automatically apply to [web search](https://souverana.ch/en/insights/google-gemini-datenschutz/) or the coding agent sitting alongside it.
-   **A duty of confidentiality that binds the provider itself.** It must include sub-processors and continue to apply after the contract ends. Technical measures do not cover this.
-   **The assurance that your content is not used for the provider’s own purposes**, in particular not for its training.
-   **Free use of the results**, without an additional licence and without a restriction that does not fit your business.

Under Art. 9(3), a sub-processing arrangement also needs the prior authorisation of the controller. In practice, this almost always becomes a general authorisation with a duty to notify, and providers design it very differently. The comparison of [OpenAI’s contracts](https://souverana.ch/en/insights/chatgpt-dsgvo-konform/) shows how much.

## Why the fine falls on you personally

> **CHF 250’000** The maximum fine under the revFADP, imposed on the responsible natural person.
> 
> Source: Art. 60 to 63 revFADP, in force since 1 September 2023

An exception applies only to small amounts. Where the fine would not exceed CHF 50’000 and identifying who acted within the company would be disproportionate for that amount, the authority can convict the business itself instead (Art. 64). Above that threshold, it stays with the person.

In practice, ownership therefore matters. Because the penalty falls on a person, every AI tool should have a named person responsible, who knows the contract and decides the approved data classes. Without that role, it is hard to establish in an emergency who directed the process: often a team lead who never saw the contract.

## Transparency: three additions to your privacy policy

Everyday AI tool use rarely needs its own disclosure. Art. 19 is tied to the collection of the data. The tools along the processing chain are not decisive in themselves. What matters is whether the purpose changes. An assistant that shortens an existing text does not change the purpose. A system that turns a job application into an assessment does.

Three additions are still worthwhile in almost every privacy policy:

-   Mandatory: where personal data goes abroad, Art. 19(4) requires you to name the country and the safeguard you rely on. You also name the categories of recipients (Art. 19(2)(c)).
-   Name the purposes for which AI works with personal data, as soon as something new happens with it.
-   Record that personal data can also be generated using AI, for instance when a system turns a job application into an assessment.

The rules are stricter as soon as a machine alone makes a decision that has a legal effect or materially affects the person concerned. Art. 21 then applies: you must inform the person affected, and they can demand that a natural person review the decision. The law itself names two exceptions: where the decision grants a contractual request, and where the person has expressly consented. Today, only decisions made exclusively by automated means are covered. It is exactly this threshold that upcoming Swiss regulation is likely to lower.

## How to get started

These four steps put your AI use in order:

1.  **Define data classes**: Which data may go into which tool? Three levels are enough: public, internal, especially sensitive.
2.  **Review contracts**: The four points above, per tool, and for every function your employees actually use.
3.  **Name a person responsible**: One responsible person per tool, who knows the contract and sets the approved data classes.
4.  **Update the register**: Wherever AI works with personal data, it belongs in the register of processing activities. This is only mandatory from 250 employees, or where especially sensitive data is processed on a large scale, or with high-risk profiling (Art. 12(5) revFADP, Art. 24 of the Data Protection Ordinance (DSV)). Keeping one voluntarily is still worthwhile, as it also covers part of the future requirements.

The revFADP does not prohibit AI use anywhere, and the four steps above contain no ban either. The law requires that someone makes the decisions and can demonstrate them. A blanket ban within the company achieves the opposite: the work migrates to private accounts, which you can no longer see.

Want to know whether your contracts and data classes are sufficient for AI use?

[AI Governance](https://souverana.ch/en/leistungen/ki-governance/)

Where the revFADP leaves off, the other parts of the series begin: professional secrecy for especially protected data, AI governance for the organisation, and the EU AI Act for the European perspective.

## Sources

[1] Bundesgesetz über den Datenschutz (revDSG). «Art. 60 bis 63 revDSG, in Kraft seit 1. September 2023». Primärquelle.

The author

Joel Barmettler

AI Architect · Souverana, Zurich

Joel Barmettler guides Swiss companies from AI strategy to integration: sovereign, confidential and production-ready. He built the Swiss AI Hub as its architect and today co-owns its architecture; he personally leads every Souverana mandate. Mandates from one-person firms to Fortune 500 corporations.

[Book an intro call](https://meet.brevo.com/joel-barmettler/30-minute-meeting) [More about Souverana](https://souverana.ch/en/) [LinkedIn](https://www.linkedin.com/in/joel-barmettler-b9ab361b7)

## Frequently asked questions

Does the revFADP apply to the use of AI?

Yes, without limitation. The law is written to be technology-neutral and does not mention artificial intelligence anywhere. As soon as an AI application processes personal data, the same requirements apply as for any other processing: a defined purpose, a contract with the service provider, data security, transparency, and, where the risk is high, an impact assessment.

How high are the fines under the revFADP?

Up to CHF 250’000. The fines are directed at the person who acted within the company. Where the fine would not exceed CHF 50’000 and identifying that person would be disproportionate, the company can be convicted in their place. The offences require intent, and most are prosecuted only on complaint.

Do I need a data processing agreement for an AI tool?

In practice, yes. Art. 9 of the revFADP ties the handover of data to a service provider to conditions: the provider processes the data only in ways you yourself would be permitted to, no duty of confidentiality stands in the way, and you satisfy yourself of the provider's data security. Whoever intentionally disregards these conditions is liable to prosecution under Art. 61. The contract evidences that they are met.

When does an AI project need a data protection impact assessment?

When the processing carries a high risk to the personality or fundamental rights of the people affected, for instance with extensive profiling (automated evaluation of individuals) or especially sensitive data. Art. 22 of the revFADP requires one in advance. In practice, this is a structured conversation, not a project.

May holders of professional secrecy engage AI providers?

Only with additional review. A processor is the service provider that processes data on your behalf. Art. 9 of the revFADP expressly permits a handover to it only where no statutory or contractual duty of confidentiality stands in the way. Law firms, medical practices and hospitals must therefore clarify professional secrecy before signing the contract; banks must clarify banking client confidentiality.

## Glossary

-   **FDPIC (EDÖB)**: The Federal Data Protection and Information Commissioner, Switzerland's federal supervisory authority. It can conduct investigations and issue rulings; fines are imposed by the cantonal criminal authorities.
-   **revFADP (revDSG)**: Switzerland's revised Federal Act on Data Protection, in force since 1 September 2023. It governs how companies may process personal data, and applies to AI use exactly as it does to any other processing.
-   **Data Processing Agreement (DPA)**: The contract that governs how a provider may process personal data on a customer's behalf. Without a signed DPA, a cloud provider is not considered bound under data protection law.
-   **Personal data**: Any information relating to an identified or identifiable person, so customer records, HR files or even an email address. As soon as such data is involved, the revFADP applies.
-   **Processor**: A service provider that processes personal data on behalf of, and under the instructions of, the controller, such as a cloud or AI provider. Art. 9 of the revFADP ties the handover to conditions.
-   **Controller**: Whoever decides the purpose and means of a data processing, under the revFADP normally your company. The law's obligations are addressed to the controller first, even when a service provider does the actual work.
-   **Data protection impact assessment (DSFA)**: An upfront assessment of what risks a planned data processing poses to the people affected, and how those risks can be reduced. The revFADP requires one where a processing may carry a high risk, naming in particular the large-scale processing of especially sensitive data and the systematic surveillance of public areas.
-   **Prompt**: The input to a language model: question, instruction and any text sent along. What is in the prompt determines the answer and the cost.
-   **Professional and official secrecy**: The criminally protected duty of confidentiality of authorities (official secrecy, Art. 320 of the Swiss Criminal Code) and a list of professions named in the law (Art. 321), such as lawyers, doctors and pharmacists. It applies independently of data protection law and reaches further. Banking secrecy sits separately in the Banking Act.
-   **EU AI Act**: The European Union's AI regulation, in force since August 2024 and applicable in stages. It is a product-safety law: it sorts AI applications by risk and is aimed above all at those who bring AI to the EU market.