Federal Council wants to regulate OTT services

The Federal Council (upper house of the German parliament – Bundesrat) adopted a resolution on 22 April 2016 requesting the federal government to revise the regulatory framework for telecommunications with respect to “messaging services such as WhatsApp, Line and Telegram”. It is calling for the federal government to adapt the German Telecommunications Act (Telekommunikationsgesetz – TKG) to accommodate increased digitalisation and the associated “new” services.

Traditional telecommunications services are facing increasing competition from “over-the-top” services (OTT services), such as messaging or VoIP services. It is currently unclear whether the German Telecommunications Act applies equally to these OTT services as to traditional services . Case law, regulators, providers and legal literature are at odds on this issue. Under the current regulations the answer to this question may even be different depending on how a service technically operates. Therefore, there is currently quite some legal uncertainty for providers. In practice the only way to remedy this uncertainty is by way of individual assessment and expert legal examination of the individual functions of the OTT service and its specific terms of use.

The Bundesrat has now opted for a “more equal treatment” of OTTs and other telecommunications services, arguing that it must be ensured that a sufficient level of protection applies to users of OTT services, above all with respect to their traffic data and communication content. The Bundesrat also said it was today not transparent for users whether statutory regulations governed their service and if so which statutory regulations apply.

In order to provide optimal support for the digitalisation process in Germany, i.e. to exploit economic benefits and take the necessary protective measures, the federal government has in principle already created a political framework for action with its “Digital Agenda 2014-2017”. Also, the Cologne Administrative Court with a judgment of 11 November 2015 relating to Gmail held that OTT services in principle fall under the term “telecommunications services” used in the German Telecommunications Act and are therefore subject to regulation. The judgment is, however, not yet final; it has been reported that Google has filed an appeal. The Bundesrat therefore apparently sees the need for prompt action on the part of the legislator. The federal government is required to present a progress report on this in autumn 2016.