Internet-based email services, such as Gmail, are not subject to European telecom regulation, the European Court of Justice has ruled.
The decision is a partial setback for EU telecom regulators’ efforts to require OTT services to comply with telecom regulations. Earlier this month, the ECJ ruled against Skype, finding that apps for making telephone calls are telecom services under EU law.
The ruling is likely to have an impact on the regulation of internet-based services beyond email. For example, it means that webmail and messaging apps may only need to comply with the privacy requirements of the GDPR rather than stricter privacy rules that apply to telecom companies.
However, such services will still be subject to some telecom-related requirements (e.g., security and perhaps law enforcement access) when new EU telecom legislation goes into effect in December 2020.
The ECJ’s ruling overturns a decision by Germany’s telecom regulator requiring Google’s email service to register as a telecom service and comply with related requirements.
Google had argued that it does not provide a regulated communications service because Gmail relies on internet access providers to transmit and receive email messages. When the dispute reached the courts, the European Court of Justice was asked to rule on whether a web-based email service fit within the definition of an “electronic communications service” (ECS) under EU law.
The ECJ found that Gmail does not provide a means to transmit messages for purposes of telecom regulation as Google does not include internet access with Gmail. While recognizing that Gmail has a role in transmitting email messages for its users, the court found that Google’s involvement in transmission was not sufficient for Gmail to be considered a service for conveying communications – the key aspect of the definition of an ECS.
In its ruling against Skype, the ECJ focused on agreements that Skype had entered into with telecom carriers to deliver calls to telephones. In ruling in favor of Google, the court noted that Gmail only uploads data to and receives data from the open internet. By implication, Google does not take responsibility for transmitting messages to end users’ devices as it does not enter into agreements similar to those that Skype has (i.e., Google does not bundle or resell internet access with Gmail). The court agreed with Google that the mere operation of email servers to facilitate the transmission of email messages was insufficient to trigger regulation of internet-based email as a telecom service.
Google’s appeal will now return to the German appellate court for a final ruling.
The ECJ’s ruling provides some additional clarity regarding OTT regulation in Europe, but several issues remain open.
First, the court’s decision means that email and other OTT apps without telephone calling features will remain outside the scope of EU telecom regulation until December 2020. Until that time, such services will not be required to comply with EU obligations that apply to traditional telephone services. However, when the EU’s new telecom code goes into effect on December 21, 2020, the definition of ECS will expand to include “interpersonal communications services” (ICS) provided over the internet in order to include VoIP services, messaging apps and email services. Because the ICS definition is not tied to the conveyance of communications, the ECJ’s ruling will not affect the treatment of email, messaging and voice chat apps as regulated services within the new telecom code.
Second, webmail and messaging services should only be subject to the privacy requirements of the GDPR rather than stricter telecom-specific privacy rules. Currently, the ePrivacy Directive imposes additional confidentiality obligations on providers of electronic communications services in the EU. A proposal to update these rules – through a new ePrivacy Regulation – that would cover email and messaging services has been delayed due to disagreements among European governments over its scope. When EU governments implement the new telecom code into national Iaw next year, they will need to take care not to inadvertently extend telecom-specific privacy rules to email and other non-conveyance services until the ePrivacy Directive is updated or replaced.
Third, the ECJ’s ruling leaves open the possibility that a webmail provider could have regulatory obligations because it operates an “electronic communications network” under telecom law. The EU regulatory framework places somewhat different regulatory obligations on operators of telecom facilities that are independent of whether the operator provides telecom services to end users. Although unable to apply service-related obligations, regulators may ask OTT providers to comply with network-related requirements instead.
Finally, what constitutes an “electronic communications service” will still be subject to interpretation with respect to some OTT services. While the new EU telecom code creates a new definition of “electronic communication service” that includes “interpersonal communications services” (ICS) (e.g., email, VoIP and messaging), the new definition retains a catch-all category for services that consist “wholly or mainly in the conveyance of signals.” Following the ECJ’s Gmail and Skype decisions, it is still not clear when OTT communications services that are not ICS might qualify as an ECS due to their involvement in the conveyance of communications.