Last Thursday, the European Court of Justice (ECJ) ruled that the “Gmail” mail service should not be treated as a telecommunications service under European law, C-193-18. The German Federal Network Agency (or the “Bundesnetzagentur”) has thus been foiled in its plans to subject web services to the provisions of the German Telecommunications Act.
As eco Board Member Klaus Landefeld states: “The decision of the European Court of Justice is likely to have an impact far beyond the specific case at hand and should also have applicability for other Internet services, such as messengers which transmit encrypted data – services which recently stood in the focus of debate.”
According to this ruling, so-called over-the-top (OTT) services are not telecommunications services and as such are not obligated to either share information about data transfers or make monitoring interfaces available to authorities, as prescribed by the German Telecommunications Act. This obligation to make functions available for monitoring has been the central trigger for year-long litigation regarding the classification of services.
“For the Internet industry and for users, the court decision is undoubtedly positive, even if the interim period of the judgement – which will apply until the European Code for Electronic Communications Services (EECC) comes into force – is likely to be limited. Each and every current political discussion concerning new monitoring plans undermines data protection and the confidence of users in Internet services. This is causing immense damage to the German Internet industry,” warns Landefeld.
