According to the European Court of Justice (ECJ), Article 2(c) of Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (Framework Directive) “must be interpreted as meaning that a web-based email service which does not itself provide internet access, such as the Gmail service provided by Google LLC, does not consist wholly or mainly in the conveyance of signals on electronic communications networks and therefore does not constitute an ‘electronic communications service’ within the meaning of that provision”.
A current grey area
European regulatory Framework imposes a number of obligations on the providers of electronic communications services (ECS) within the meaning of the Directive 2002/21/EC (‘Framework Directive’).
The interest for actors close to (or present in) the telecoms sectors to determine whether they are covered by the Framework Directive is therefore relatively important.
However, the concept of ECS is currently unclear within the meaning of European legislation. While we were discussing in a previous news what constitutes a regulated electronic communications service (with the SkypeOut case), this week we will outline what is not (Gmail case).
Background
This case confronts Google LLC with the German Federal Network Agency (Bundesnetzagentur or BNetzA). The BNetzA argued that Google’s Gmail service constitutes a telecommunications service and is therefore subject to a notification obligation. Google, for its part, submits that Gmail is not a telecommunications service since that service does not emit signals.
In those circumstances, the ECJ was seized by the Higher Administrative Court for the Land of North Rhine-Westphalia (Germany) to decide whether web-based email services, such as Gmail, can be classified as ‘electronic communications services’ within the meaning of Article 2(c) of the Framework Directive.
Relevant criteria according to the ECJ
The decisive criterion to determine whether the service is an ECS is whether the service consists ‘wholly or mainly in the conveyance of signals over electronic communications networks (ECNs)’.
The ECJ noted that Google, as a provider of web-based email service, is involved in the conveyance of signals for the transport of the emails. However, the Court finds that this involvement in the conveyance of signals is insufficient to consider Google as an ECS provider.
In the Court’s view, the fact that Google “actively participates in the sending and receipt of messages, whether by assigning to the email addresses the IP addresses of the corresponding terminal devices or by splitting those messages into data packets and uploading them to, or receiving them from, the open internet for the purposes of transmitting them to their recipients, does not appear to be sufficient to enable that service, on the technical level, to be regarded as consisting ‘wholly or mainly in the conveyance of signals on electronic communications networks’”.
Following the written observations of the European Commission, the ECJ stated that it is :
(a) the IAPs of the senders and recipients of the emails (and, as the case may be, the web-based email service providers) ; and
(b) the operators of the various networks of which the open internet is constituted
which, essentially, convey the signals necessary for the functioning of any web-based email service. Consequently, they are responsible vis-à-vis those holding an email account with Gmail for the provision of the relevant service (within the meaning of the judgment of 30 April 2014, C‑475/12, UPC DTH, § 43).
What future for Over-the-Top Communications (‘OTT’) ?
Although the SkypeOut and Gmail cases are interesting, their value are limited in time. Indeed, the new European Electronic Communications Code (EECC) – to be transposed by 21 December 2020 – extends the concept of ‘electronic communications service’ to include ‘number-independent interpersonal communications services’. A web-based email service like Gmail will therefore fall into this last category.
Our advice:
Are you worried about the impact that the Skype and Gmail cases may have on your OTT business? Do you already want to anticipate the legislative evolutions implied by the EECC ? Lexing’s Creactivity department is naturally at your disposal to provide you with regulatory policy advice.