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'Over-the-top' communication providers to fall subject to e-Privacy regulations

Internet-based communication services will be subject to a revised EU regulatory framework on privacy and electronic communications (e-Privacy), according to media reports.16 Aug 2016

Reuters and the Financial Times have reported that the European Commission will outline initial plans for reform next month before outlining more detailed proposals later in the year.

Citing internal Commission documentation, the reports said the Commission plans to extend rules on the security and confidentiality of communications to so-called 'over-the-top' communication service providers, such as WhatsApp and Skype. Traditional telecoms companies are already subject to those rules.

Under existing e-Privacy rules, communications and related traffic data must be kept confidential by providers of public communications networks and publicly available electronic communications services. The rules "prohibit listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other than users, without the consent of the users concerned" other than for national security reasons.

The new-age communication services may also be required to adhere to new data portability rules that will give users the right to transfer their data from those services when switching to rival services, Reuters said.

Telecoms law expert Diane Mullenex of Pinsent Masons, the law firm behind Out-Law.com, said earlier this year that it would be wrong for OTT communication providers to be regulated in the same way as internet service providers and mobile network operators. She said it would be wrong to define all of those services under a single definition of 'electronic communication services' for the purposes of the e-Privacy regime.

"The regulatory framework needs to keep pace with innovation," Mullenex said. "By the time a new definition is agreed upon it is likely to be obsolete. If a redefinition is too broad it could also inadvertently catch a wider range of businesses than intended, possibly even in other markets.

In addition, there will never be a single definition that could encompass with sufficient granularity all the different types of services offered by the myriad of different communication service providers. BT, Vodafone, Skype, WhatsApp, Facebook, Netflix: all are either telecom operators or OTT service providers, but each company delivers different services in different ways."

Mullenex instead recommended a three-step approach to future regulation in the telecoms market. She said outdated regulations that apply to traditional telecoms businesses should be scrapped, new rules to be applied to OTT providers should be carefully crafted and that more managed service agreements between telcos and OTT providers should be encouraged.

Together those measures "would provide a more supportive environment to telcos in which to raise the funds needed to invest in next-generation networks without killing the rise of innovative new rival services", Mullenex said.