What makes an Electronic Communications Service? (Part 2)
On 13 June 2019, the Court of Justice of the European Union (“CJEU“) published its ruling on the classification of Gmail in the EU following a request for a preliminary ruling from the German Courts. Gmail is a web-based email service, and is a type of “Over-The-Top” (“OTT”) service.
The CJEU determined that Gmail is not an electronic communications service (“ECS”), as defined in the Framework Directive (Directive 2002/21/EC, as amended) – i.e. a service consisting mainly or wholly of the conveyance of signals. As a result, Gmail should not be subject to various telecommunications regulatory obligations in the EU, including registration/notification (depending on the national regime), payment of administrative fees, security, and consumer protection measures such as minimum contract terms and transparency requirements.
The key features that led the CJEU to conclude that Gmail is not an ECS include the following:
- the Gmail service itself does not involve the conveyance of signals, rather these signals are conveyed by the Internet Service Providers (“ISPs”) of the sender and recipients of an email;
- Google has no responsibility vis-à-vis those holding an email account with Gmail for the conveyance of signals necessary for that account’s functioning; and
- the fact that Google also operates its own electronic communications networks mainly for its own content services, like Google and YouTube, and those networks are also used for downloading and uploading the data packets of its web-based email service is insufficient to constitute an ECS.
In the words of the CJEU (para. 38 – 40):
 “The fact that the supplier of a web-based email service actively participates in the sending and receipt of messages, whether by assigning to the email addresses the IP addresses of the corresponding terminal devices or by splitting those messages into data packets and uploading them to, or receiving them from, the open internet for the purposes of transmitting them to their recipients, does not appear to be sufficient to enable that service, on the technical level, to be regarded as consisting ‘wholly or mainly in the conveyance of signals on electronic communications networks’ within the meaning of the Framework Directive”
 “Accordingly, given the absence of any other element such as to establish Google’s responsibility vis-à-vis those holding an email account with Gmail for the conveyance of signals necessary for that account’s functioning, […] the Gmail email service cannot be classified as an ‘electronic communications service’ within the meaning of the Framework Directive.”
 “Lastly, the fact that Google also operates its own electronic communications networks in Germany is not such as to call in question that finding.”
This case is the latest in a line of case law clarifying the factors that may make an OTT fall within the definition of ECS under the current EU regulatory framework for electronic communications. It confirms that pure OTTs are not ECS, without more. The “plus” that could tip OTT into the ECS category includes the following factors:
- The resale of connectivity, even if the conveyance of signals is provided by a third party (C-475/12, UPC DTH, para. 43);
- The ability to call a fixed or mobile number covered by a national numbering plan from a terminal via the ‘public switched telephone network’ (PSTN) (Case C‑142/18, para. 42);
- The interconnection agreements with the PSTN, which in turn means that the OTT provider has an element of responsibility for this aspect of the service (id. para. 34); and
- the fact that the service is paid for.
The CJEU ruling in the Gmail case is also relevant for the interpretation of the new EU Electronic Communications Code (“Code”) which will replace the Framework Directive as of 20 December 2020. The Code introduces a new definition of ECS, which includes three sub-categories of services: (a) internet access services, (b) interpersonal communications, and (c) conveyance of signals. Interpersonal communications are further sub-divided into number-based or and number-independent services, based on whether or not they connect with publicly assigned numbering resources.
Based on the Gmail case, pure OTTs, like Gmail, will likely fall within the category of number-independent services under Code, and would thus be subject to lighter regulatory obligations than the other categories of ECS, such as number-dependent and conveyance of signals services.
- Tuesday, 18 June 2019