Messengers and telecom legislation
WhatsApp, Telegram, Viber, Skype and other messengers are very popular, many use them as their main means of communication. However, telecommunications is an area that is regulated by the state both in Russia and in foreign jurisdictions. Does the law governing telecommunications apply to instant messengers? Let us examine the example of Russia and the European Union.Russia
The Federal Law “On Communications” stipulates that communication services are provided to users by communication operators on the basis of service agreements. At the same time, the law refers to a communication service as the activity of transmitting telecommunication messages (and mail). Telecommunication, in turn, is the transmission of messages of any kind on the "radio system, wired, optical and other electromagnetic systems."However, instant messengers are a type of OTT (“over-the-top”) services, they are provided "on top" of existing communication networks via the public Internet. For the purposes of the Law “On Communications”, transmission should be carried out over communication networks, not “over” them.Therefore, messengers, despite the fact that from the point of view of functionality they provide communication services, do not have to comply with the important responsibilities of communication operators: initially obtain a license to carry out activities, interact with other communication operators, provide the possibility of round-the-clock free call of special services, etc.The law mentions content services, but defines them as services that are aimed at “increasing the consumer value” of mobile services; the subscriber must pay such services to the telecom operator. Messengers for content services are also not suitable.Thus, the Russian telecommunications legislation does not apply to instant messengers.It should be noted that the Federal Law “On Information, Information Technologies and Information Protection” establishes the duties of “organizers of the dissemination of information” that apply to instant messengers, but they differ from the responsibilities of telecom operators.The European Union
Before the European Union adopted the new European Code of Electronic Communications in December 2018, telecom regulators in some countries recognized OTT services as telecom operators, which are subject to the same rules as traditional telecommunications companies.Thus, the German regulator BNetzA recognized Gmail as a means of communication and obligated Google to comply with applicable telecommunications laws; The trial court upheld this decision. The regulator in Belgium gave Skype the same status with its SkypeOut function, which allows you to call numbers on the public telephone network. Both cases reached the Court of Justice of the European Union ( the Google case and the Skype case ) and were resolved in June 2019 - already in the spirit of the new European Code.The Code introduced the concept of “interpersonal communications service”. It is understood as a service, usually provided for a fee, which allows for "interpersonal and interactive exchange of information through electronic communications networks between a finite number of participants, while the initiators or participants of communication determine its recipients."Under remuneration, the Code raises not only the payment by the user, but also the transfer of personal data and other user information, providing access to such information, as well as receiving payment not from the user, but from any third party.Thus, OTT services that functionally provide communication services (instant messengers, VoIP, e-mail) are subject to the telecommunication legislation in the European Union.The code divides such services into two categories - independent of numbers and based on numbers (number-independent and number-based).A service is considered to be based on numbers if it provides the opportunity to call a number of a national or international numbering plan, that is, a regular telephone number. Such functionality has, for example, Skype. It is this category of OTT communication services that is fully regulated, the obligations of providers in this case do not differ from those of traditional telecom operators.Telecommunication services independent of OTT numbers are initially exempted from such obligations. However, member states of the European Union may impose obligations on them if necessary to protect “public interests”. The Code also stipulates that with the development of technical means, it may become necessary to oblige OTT communication services to be compatible, as well as to make it possible to make emergency calls.Due to the fact that the Code was adopted in the form of a directive (Directive), and not a regulation (Regulation), it has no direct effect on the territory of the Member States of the European Union and must be implemented in the legislation of the countries within two years from the date of entry into force . Thus, by December 2020, we can see the expanded regulation of OTT communication services by the telecommunications legislation of the EU member states.By implementing the dichotomy of OTT services established by the Code in litigation with Google and Skype, the European Union Court ruled that Gmail is not required to comply with industry requirements, and Skype is required.The legislation of the Russian Federation in the field of telecommunications does not pay attention to the functionality of instant messengers as a means of communication. The European Union is much more progressive in this - or “progressive" - ​​and brings new Internet services under traditional regulation.I wonder if Russian legislation will follow the path of the European Union. Source: https://habr.com/ru/post/undefined/
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