OTT regulation framework in the context of CJEU Skype case and European Electronic Communications Code

Marcin Rojszczak

Abstract

The telecommunications services sector is one of the most dynamically developing seg- ments of the contemporary economy. At the same time, it is undergoing constant change, the result of its adaptation to the needs of modern digital services and the expectations of users. In practice, traditional telecommunications services are being increasingly replaced by those that offer equivalent functionality but are provided via the Internet. Examples of this type of service are VoIP telephony, instant messengers and online chat. This group of services is collectively referred to as OTT. The growing popularity of OTT services not only affects the shape of the telecommunica- tions market, but, from the point of view of legislatures and market regulators, has also led to a number of practical problems. One of them is how to apply a EU regulatory framework established for the electronic communications sector to modern OTT services. Recently, this problem has become an object of interest to both the CJEU and the EU legislature. The purpose of this article is to discuss the effects of the recent Skype adjudication on the regulation of the OTT sector, including the pending entry into force of the European Elec- tronic Communications Code. The analysis considers the technical and regulatory back- ground of issues relating to the judgment, the ongoing legislative work and the importance of the judgment in practice. Ambiguities in interpretation are also identified and discussed, in particular those relating to the attempt to apply the Skype judgment and the entire reg- ulatory framework to OTT services. These aspects will be discussed from the perspective of the protection of users’ privacy, an important part of the provision of electronic communications services. The choice of this aspect of OTT services regulation would seem to be particularly apt in light of the ongoing reform of the EU data protection model, which will include the new e-privacy regulation currently being drafted.