In two long-awaited decisions handed down yesterday and last week, respectively, the European Court of Justice (ECJ) had the opportunity to decide the fate of online or "over-the-top" (OTT) communications services under European telecommunications law – but it left several key questions unresolved
In last week's decision, the ECJ found Microsoft's Skype to be a regulated electronic communications service (ECS) within the meaning of EU laws, at least as far as the "SkypeOut" feature, which allows users to place calls to fixed or mobile devices, is concerned. In contrast, the ECJ decided yesterday that Google's email service Gmail does not qualify as a regulated service – however, without a fully comprehensive reasoning.
The two decisions bring only limited clarity to the issue of whether online communications services must generally comply with the same telecommunications laws as "traditional" telco services provided by fixed or mobile service providers. While the ECJ confirmed that services with a breakout to the public telephone network are likely to be regulated, the regulation of all other OTT services will continue to depend on a case-by-case assessment of the service's functionalities and their technical implementation. It is therefore likely that further clarity will only be achieved once the EU Member States have implemented the new Electronic Communications Code that the EU adopted in December 2018, and that specifically includes OTT services in its scope.
This alert is relevant for all providers of online communications services.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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