The European Commission has published a detailed proposal for a European Electronic Communications Code, which would bring the bulk of EU electronic communications-related legislation, and in particular the four key existing Directives (Framework, Authorisation, Access and Universal Service), into one legal text.
Importantly, it has also taken the opportunity to address directly the place of over-the-top (“OTT”) or software-based applications used for interpersonal voice and data communications, which up to date has been an area of doubt and inconsistent interpretation among EU Member States.
The key definition of “electronic communications services” has been expanded and clarified as follows:
- a new definition is introduced for “interpersonal communications services”: direct and interpersonal exchange of information between a finite number of persons chosen by the participants;
- number-independent interpersonal communications services (that do not route communications to the public switched telephone network – and using numbers as identifiers does not make them number-based) will be subject to only some limited obligations (e.g. in relation to security and interoperability);
- However, number-based interpersonal communications services (that connect to the public telephone network) will be subject to most of the same obligations as other publicly available electronic communications services;
- Internet access services are specified as the further main category of publicly available electronic communications services;
- Machine to machine (M2M) communications are expressly brought under the umbrella of electronic communications services (often these will not be publicly available).
The qualification “normally provided for remuneration” in the definition of electronic communications services has been retained. However, this has been significantly expanded to include: (i) provision of something other than money, which might include persona data; and/or (ii) remuneration by a third party, e.g. advertising revenue.
So software-to-phone calling services would be regulated in a similar way to equivalent phone services (having to notify provision of services, provide access to emergency calling etc.) “as they participate in and hence also benefit from a publicly assured interoperable ecosystem”. On the other hand, calling services that are exclusively software-to-software (PC to PC or app to PC) while being expressly regulated, would be subject to much lesser obligations.
Of course, this is currently only a proposal and may be subject to significant amendments during consideration by the EU institutions. As many of the provisions are merely recast from the existing directives, only the new provisions will need additional implementation into EU national laws, and no deadline has been set out for this. Depending on timings and structures chosen, for the UK, this could have the effect of (temporarily) leaving the existing provisions in effect while the new provisions might only take effect after a “Brexit”, and so might not be binding on the UK.
Looking for now only at electronic communications services (and not electronic communications networks), in this ‘as-handy-as-it-could-reasonably-be’ downloadable table, we set out how some of the principal provisions of the proposed Directive apply to the different categories: EU Electronic Communications Services Table – 03 October 2016
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