OTT services under the status of electronic communications providers

The development of OTT services has given rise to the creation of groups which, at times, surpass the incumbent telecom operators. OTT services can be defined as all the services available on the Internet, regardless of the type of connection or the access provider. In the communication service, the OTT bring together giants such as WhatsApp, Skype or Facebook Messenger. These services have many advantages: no borders, free services, more extensive functionalities than traditional communication services, etc. Their development has been made possible by limited or non-existent regulations, in particular with regard to that to which traditional telecom operators whose activity is highly regulated are subject. Nonetheless, States are looking more and more at the regulation of these actors.

Electronic communications services

German law wanted to regulate these services quickly. The Federal Network Agency (Bundesnetzagentur) considers providers of webmail services to be providers of electronic communications services. This was confirmed by the Cologne Administrative Court in a judgment of 11 November 2015 which confirmed that Gmail was a “telecommunications service” within the meaning of Article 6 (1) of the Telekommunikationsgesetz [1] , read in conjunction with article 3 of the TKG [2] .

In France, the Electronic Communications Regulatory Authority (ARCEP) took up the question of the qualification of Skype in 2013. Indeed, on March 12, 2013, it entered the French courts in order to inform it of a possible breach by Skype of its obligation to declare itself as an operator of electronic communications in France. It considers that while all the services provided by Skype are not electronic communications services, it is the case of the service which allows Internet users to make telephone calls from a terminal connected to the Internet using software offered by the company Skype. Although this complaint has become moot since the Macron law of August 6, 2015 “for growth, activity and equal economic opportunities” because ARCEP now has the power to declare an operator ex officio, in accordance with Article L33-1 of the Post and Electronic Communications Code, it demonstrates [3] that the national authorities have taken up the issue of OTT well before the European institutions with the desire to regulate these operations more strictly.

Eternoscorp accompanies you to comply with the status of your activity as well as for all the formalities that are incumbent.

By a judgment of 5 June 2019 , the Court of Justice of the The European Union has ruled on the qualification of the SkypeOut service published by the company Skype Communications: it considers that it is an electronic communication service.

The Skype company has created the “Skype” communication software which allows a user to benefit from a voice telephony and teleconferencing service, from device to device from computer equipment connected to the Internet. Subsequently, a tool was developed which allows the user to make telephone calls to a fixed or mobile telephone line, using the so-called “ Voice over IP ” (VoIP) technique, this tool is SkypeOut.

The company indicated that in order to run the SkypeOut service it relied on international operators who themselves routed the signals

This judgment opposed the company Skype Communications to the Belgian Institute for Postal Services and Telecommunications (BIPT) concerning the latter’s decision to impose an administrative fine on Skype Communications for having provided an electronic communication service without having previously carried out the notification required by Belgian law on electronic communications. The company Skype opposed this sanction, considering that it did not carry out any activity in Belgium and that, therefore, it did not provide any telecommunications service as it did not transmit any signal. In addition, the company indicated that in order to operate the SkypeOut service it used operatinternational players who carried the signals themselves.

The question arises: can the SkypeOut service be regarded as an electronic communication service with regard to Directive 2002/21 / EC on a common regulatory framework for electronic communications networks and services [4] ?

The question referred for a preliminary ruling is as follows: should Article 2 (c) of Directive 2002/21 / EC [5] be interpreted as the provision by the publisher of software of a functionality offering a VoIP service, which allows the user to call a fixed or mobile number of a national numbering plan via the public telephone network switched from a Member State from a terminal, should be qualified as an “electronic communications service” within the meaning of this provision? The Court is required to respond to this problem with regard to two items of information: on the one hand, the fact that the provision of the service gives rise to remuneration for the publisher and, on the other hand, that it implies the conclusion by the latter has agreements with telecommunications service providers authorized to transmit and terminate calls to the PSTN.

First, the European judges recall the definition of an “electronic communication service”. To meet this concept the service must include the transmission of signals, the fact that the transmission of the signal is carried out via an infrastructure that does not belong to the provider has no effect that the qualification as an electronic communication service. Indeed, as stated previously in a judgment of April 30, 2014, the Court recalls that the only important thing is the fact that the service provider is responsible towards the end users for the transmission of the signal which guarantees the latter the provision of the service to which they have subscribed. .

However, the Court noted that the company Skype Communications offers its VoIP service in Belgium and that it receives remuneration from its users as such, because the use of the SkypeOut functionality is subject to either prepayment or to a subscription. In addition, it is necessary to emphasize that the use of the SkypeOut service requires the intervention of telecommunications service providers who have concluded agreements with the company Skype Communications in order to authorize the latter to transmit and terminate calls to the fixed or mobile telephone numbers via the PSTN in return for tariff remuneration paid by Skype Communications. And finally, the judges note that the SkypeOut functionality consists mainly of transmitting voice signals emitted by users.

The remuneration of the publisher for the provision of this service and the conclusion of agreements with telecommunications service providers

In view of all these elements, the CJEU affirms that the company Skype Communications must be considered as assuming responsibility towards its users of the SkypeOut functionality. However, the telecommunications providers providing the termination of mobile or landline calls on the PSTN cannot be held responsible for the transmission of voice signals to users of the SkypeOut functionality as they are unrelated. contractual with these users. However, it should be noted that in view of their contractual relationship with Skype Communications, these providers are responsible to the latter for the routing of voice signals transmitted through Skype Out over the PSTN. Finally, the European judges recalled that the only person responsible for the VoIP service is the company SkypeOut because of the contractual relationship it maintains with them.

In this regard, the Court notes that “ the circumstance that Skype Communications indicates, in its general conditions, that it does not assume responsibility for the transmission of signals with regard to users of the SkypeOut functionality of its Skype software should not affect the qualification of the VoIP service that this feature offers as “electronic communications service “. In this regard, it should be noted that the qualification of “electronic communications service” depends essentially on the circumstances of the case and not on the qualification that the company wishes to give it with regard to contractual relations with its customers.

In view of all of this information, the Court concluded that “ the provision, by the software publisher, of afunctionality providing a VoIP service, which allows the user to call a fixed or mobile number of a national numbering plan via the PSTN of a Member State from a terminal, constitutes an “electronic communications service” , within the meaning of this provision, since the provision of said service, on the one hand, gives rise to remuneration for the publisher and, on the other hand, implies the conclusion by the latter of agreements with service providers of telecommunications duly authorized to transmit and terminate calls to the PSTN . “. Finally, two conditions seem necessary to qualify this software as an “electronic communication service”: the remuneration of the publisher for the provision of this service and the conclusion of agreements with the providers of telecommunications services.

To understand this solution of the CJEU, it is necessary to remember the context in which it was rendered. On December 11, 2018, the directive 2018 was adopted / 1972 establishing the communications code European electronics . This reform defines more broadly the notion of “electronic communications service” to include so-called “bypass” or “over the top” (OTT) services. Indeed, the new Code includes in electronic communication services the “interpersonal communications services” defined as allowing “the direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of people ”, these networks referring to OTT operators. The new European Electronic Communications Code therefore responds to the issue of the dispute between the Belgian institute and the company Skype Communications. OTTs are now subject to various obligations such as network security obligations, they must take “ adequate and proportionate technical and organizational measures to manage network and service security risks appropriately. ”, ensure the connectivity of the network“ end to end between end users ”.

While the new Code does not fully align the OTT regime with that of traditional electronic communications operators, the difference in treatment is reduced. From now on, OTTs are required to comply with new obligations which imply greater vigilance and increased protection of users.

EternosCorp remains at your disposal to ensure that you fulfill all the obligations incumbent on you in accordance with your status as a communication operator.

[1] “ Anyone who commercially operates public telecommunications networks or publicly available telecommunications services is required to report to the regulatory authority the launch, modification or cessation of its activity, as well as the modifications relating to its company. The declaration

it must be in writing . ”

[2] ““ telecommunications services ”means services normally provided for remuneration which consist wholly or mainly of the transmission of signals over radio networks telecommunications, including transmission services over networks used for broadcasting ‘

[3] “When a person operates a network open to the public or provides an electronic communications service to the public without the declaration provided for in the first paragraph of present I has been made, the authority, assembled in a dispute settlement, prosecution and investigation formation, may, after this person has been invited to report the activity concerned without delay, make this declaration ex officio. . The person concerned is informed. ”

[4] Directive now replaced by Directive 2018/1972 of 11 December 2018 establishing the European electronic communications code

[5] “” electronic communications service “: the service normally provided for remuneration which consists entirely or mainly ofin the transmission of signals over electronic communications networks, including telecommunications services and transmission services over networks used for broadcasting, but which excludes services consisting in providing content using networks and services electronic communications or to exercise editorial responsibility for such content; it does not include information society services as defined in Article 1 of Directive 98/34 / EC which do not consist entirely or mainly of the transmission of signals over electronic communications networks; “