To the relief of Europe’s tech community, European Court of Justice rules that Gmail is not electronic communications service and does not fall under the EU regulatory framework for telecommunications.
European regulatory Framework on electronic communications (or telecommunications) imposes a number of public law rights and obligations on the providers of services that consist ‘wholly or mainly’ in the conveyance of signals on electronic communications networks. According to German regulator BNetzA, whose decision was upheld by the Administrative Court in Cologne, Gmail satisfied this definition.
Whereas Google operates its own internet-connected network infrastructure in Germany, in particular several high-speed links between metropolitan areas, that was according to the Administrative Court not decisive: “The fact that the conveyance of signals occurs essentially over the open internet and thus that it is the internet access providers (‘IAPs’) which convey those signals and not Google itself does not preclude the classification of Gmail as a telecommunications service.” The signal conveyance service may be attributed to Google based on its ‘appropriation’ of “the signal conveyance service for its own purposes and, in particular, on the ground that it makes an essential contribution to the functioning of the telecommunications process with its electronic processing services.”
What does the ECJ say about Gmail?
According to the ECJ, however, Article 2(c) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC, “must be interpreted as meaning that a web-based email service which does not itself provide internet access, such as the Gmail service provided by Google LLC, does not consist wholly or mainly in the conveyance of signals on electronic communications networks and therefore does not constitute an ‘electronic communications service’ within the meaning of that provision.”
According to the ECJ, the fact that Google “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 meet the ‘wholly or mainly’ criterion.
What is next for OTT communications?
Whereas the decision can be seen as a relief and is in line with the views of BEREC, the top body of European telecoms regulators, it is not future-proof. Notably, the new definition of ‘interpersonal communications services’ of the European Electronic Communications Code (EECC) can still be seen as potential future game-changer, aiming for so-called ‘level-playing field’ between traditional telecoms and OTTs. In addition, Gmail decision needs to be read in conjunction with the recent Skype Out decision, whereby a software service allowing calls to traditional telephones is deemed an electronic communications service.