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ECJ: No surveillance obligations for Gmail – but for SkypeOut
On 13 June 2019, the European Court of Justice ECJ decided that the web-based email service Gmail does not constitute an “electronic communications service” within the meaning of Article 2(c) of the Framework Directive (Directive 2002/21/EC as amended by Directive 2009/140/EC).
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This classification applies to a web-based email service which does not itself provide internet access and does not consist wholly or mainly in the conveyance of signals on electronic communications networks. Gmail is an over-the-top (OTT) service, i.e. a service available over the Internet without the involvement of a traditional Internet service provider. Gmail uploads to the open internet and receives from it, via its email servers, the data packets relating to the emails sent and received, respectively, by the holders of a Google email account. However, this does not constitute a “wholly or mainly” conveyance of signals. Not Gmail, but the Internet access providers of the senders/receivers and the operators of the various networks making up the open Internet are responsible for the transmission. The fact that Google also operates its own electronic communications networks in Germany does not alter this result. The ruling is based on a long-standing legal dispute between Google LLC and the Federal Republic of Germany over a decision by the Federal Network Agency in which Gmail was classified as a telecommunications service and requested to comply with the reporting obligation under Section 6 of the German Telecommunications Act (TKG).
By contrast, in its decision of 5 June 2019, the ECJ classified SkypeOut – which is not an OTT service – as an electronic communications service. This is an additional feature to the communication software “Skype”, which uses “Voice over IP (VoIP)” technology (voice transmission via Internet protocol) to enable telephone calls from a device to a landline or mobile phone connection. The provision of software with a VoIP feature allowing 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”. This is the case where, on the one hand, remuneration is paid to the publisher of the software for the provision of the service and, on the other hand, the publisher of the service concludes agreements with telecommunications service providers duly authorised to transfer and terminate calls to the PSTN. SkypeOut is paid for, as use is subject to either prepayment or subscription. In contrast to Gmail, SkypeOut acted as responsible for the transmission, since without the agreements between Skype and the PSTN telecommunications service providers the transmission of voice signals could not take place. Comparable to the German court proceedings at Gmail, this judgment is based on a legal dispute between Skype Communications and the Belgian Institute for Posts and Telecommunications (IBPT). IBPT had imposed a fine for providing an electronic communications service through Skype Communications without complying with the required notification obligation.
Both Gmail and SkypeOut always wanted to avoid classification as an electronic communications service, as the legal obligations under the TKG are very far-reaching. According to §§ 110, 113 TKG, electronic communications service providers must enable the surveillance and recording of the telecommunications of an accused party in accordance with state regulations. In addition, they have to provide a secure electronic interface (with a customer base of more than 100,000) for the information of stock data. According to the Gmail decision, OTT services do not have to comply with these obligations, SkypeOut does.
For operators of OTT services (Messenger services such as WhatsApp, Telegramm and Threema), this means that these services are not “electronic communications services”. For operators of fee-based (non-OTT) services that are comparable to SkypeOut, the classification must be carefully checked. However, it should be taken into consideration that the current classification of the ECJ does not apply until “the end of time”. The judgments relate to regulations that will only apply until the end of 2020, as the new Directive on the European Electronic Communications Code has been in force since December 2018. In Germany, the corresponding draft law for the implementation of the directive is currently being drafted.