The European Court of Justice (ECJ) clarified the scope of the EU telecommunications regulation for Over-the-top (OTT) services in two recent decisions. The court decided whether SkypeOut and Gmail are electronic communications services under the European Framework Directive.
Definition of electronic communications services
Article 2 (c) of the Framework Directive defines an electronic communications service as a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks. This definition includes telecommunications services and transmission services in networks used for broadcasting, but it excludes services providing, or exercising editorial control over, content transmitted using electronic communications networks and services. The definition does also not include information society services, which do not consist wholly or mainly in the conveyance of signals on electronic communications networks.
Falling within the scope of this definition is fundamental to the application of the telecommunications regulation in the EU member states. Providers of electronic communications services need to comply with the telecommunication regulation, which includes, inter alia, a notification requirement and specific consumer protection and data protection requirements in most member states.
In the SkypeOut case (C‑142/18) the ECJ confirmed the view of the Belgian regulator (Belgian Institute for Postal services and Telecommunications) that SkypeOut is an electronic communications service and needs to notify as such. According to the ECJ, the provision, by a software publisher, of a feature offering a Voice over Internet Protocol (VoIP) service which allows the user to call a fixed or mobile number covered by a national numbering plan from a terminal via the public switched telephone network (PSTN) of a member state constitutes an electronic communications service under the following conditions: (1) the software publisher is remunerated for the provision of that service and (2) the provision of that service involves the conclusion of agreements between that software publisher and telecommunications service providers that are duly authorized to send and terminate calls to the PSTN.
The ECJ ruled that SkypeOut falls within the scope of the definition of an electronic communications service. Even if the actual transmission – on a technical level – is not carried out by Skype itself but by other telecommunications service providers, the fact remains that such transmission occurs pursuant to agreements between Skype and those telecommunications service providers and that it could not be made without the conclusion of such agreements.
In the Gmail case (C‑193/18) the ECJ overruled the strict view of the German regulator Federal Network Agency (Bundesnetzagentur) that wanted to require Gmail to make a notification as an electronic communication service. The webmail service provided by Gmail is not covered by the definition of an electronic communication service and therefore must not comply with the Framework Directive. For the ECJ, the supplier of a web-based email service that actively participates in sending and receiving emails does not appear to be regarded as consisting wholly or mainly in the conveyance of signals as required by the definition of an electronic communication service.
In the case of a webmail service, the internet access providers of the senders and recipients of the emails convey the signals necessary for the functioning of the web-based email service, and it is they who bear responsibility. That’s what distinguishes the Gmail case from the SkypeOut case. According to the ECJ, Gmail’s active participation in the sending and receipt of messages is not sufficient to enable that service to be regarded as consisting wholly or mainly in the conveyance of signals on electronic communications networks.
The decisions help service providers and regulators to apply the definition of electronic communications services to OTT services. In both decisions, the ECJ emphasized again that the regulatory framework draws a clear distinction between the production of content, which involves editorial responsibility, and the transmission of content, which does not entail any editorial responsibility.
For the court, the fact that the transmission of signals is by means of an infrastructure that does not belong to the service provider is of no relevance to the classification of the nature of the service. All that matters in that regard is that the provider is responsible vis-à-vis the end-users for transmission of the signal which ensures that they are supplied with the service to which they have subscribed.
Outlook: New European Electronic Communications Code
While the two decisions of the ECJ clarify the scope of the current telecommunications regulation, these rulings might need to be revisited under the new European Electronic Communication Code (EECC) which entered into force on 20 December 2018 and which must be transposed by the member states by 21 December 2020.
The new definition of an electronic communication service in Article 2 (4) of the EECC includes interpersonal communications services that enable direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipient(s); Art. 2 (5) of the EECC.
There are two types of interpersonal communications services: number-based and number-independent interpersonal communications services as defined in Art. 2 (6) and (7) of the EECC. Different levels of regulation are applied to these services in subsequent articles of the EECC.
It remains to be seen how the member states will transpose the new directive and how regulators will then interpret those terms. At the moment it looks like the new definition of an electronic communication service is not only clarified but also extended compared to the current definition. With this new definition Gmail might be covered by the regulation as number-independent interpersonal communications service bringing it closer to other regulated electronic communication services.
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