As of December 2021, some provisions of sector-specific regulation under the Telecommunications Act apply to online communications services that are classified as NI-ICS such as email, messaging, video calling and video conferencing. This serves to implement the requirements of the European Electronic Communications Code (EECC) (Directive (EU) 2018/1972) into national law. NI-ICS are now subject to various obligations under the Telecommunications Act relating to public safety/security, market monitoring and consumer protection. Up until December 2021, the provisions of the Telecommunications Act were generally only applicable to traditional telecommunications services such as fixed and mobile services.
Since the change, the Bundesnetzagentur assesses providers’ online communications services within the framework of its responsibilities and informs providers when their services are classified as NI-ICS and of the obligations accompanying the classification.
Content of the guidance
The guidance contains detailed explanations for providers about when an online communications service is to be classified as an NI-ICS and which obligations are then applicable to the providers.
When is an online communications service subject as an NI-ICS to regulation under Germany’s Telecommunications Act?
Online communications services are subject as NI-ICS to regulation under Germany’s Telecommunications Act when the following legal conditions are met:
Provision of an online communications service in Germany (section 1(2) TKG, marketplace principle)
Online communications services are frequently offered and provided in more than one country. A service may be subject to regulation by the Bundesnetzagentur under the Telecommunications Act even if the company is not established or resident in Germany. What matters is that the online communications service is provided in Germany. This can generally be assumed if there are reliable indications that the service is used in Germany, such as information about registered users in Germany, the service being offered in German or the app being available in a German app store.
Online communications service as a service provided to a third party (section 3 para 1 and para 24 TKG)
If a company or an authority operates an online communications service solely for the purposes of internal communications within the company or authority, the service is not subject to the provisions of the Telecommunications Act because it is not a market-based service provided to a third party.
Normally or generally provided for remuneration (section 3 para 24 and para 61 TKG)
An online communications service is only to be classified as an NI-ICS if it is “normally provided for remuneration” or “generally provided for remuneration”. The Court of Justice of the European Union (CJEU) assumes a broad definition of remuneration. It is sufficient for the provision of the communications service to represent an economic activity. Remuneration may consist of a direct monetary payment or other forms of remuneration. This is particularly important since NI-ICS are frequently provided free of charge to the end-user. NI-ICS are often financed by advertising or other forms of indirect financing and cross-subsidisation through other services or terminal devices offered in the digital ecosystem.
Interpersonal and interactive exchange of information (section 3 para 24 TKG)
Communications, on both the sending and the receiving end, must generally take place between two or more natural persons (interpersonal exchange of information). Legal persons can be represented by natural persons. By contrast, machine-to-machine communications and communications between a natural person and a machine (such as a voice assistant or a chatbot) are not included. The exchange of information is interactive when the recipient has the option to respond.
Finite number of persons (section 3 para 24 TKG)
The exchange of information must take place between two or more persons, but ultimately between a finite and not potentially unlimited number of persons. Services similar to broadcasting that serve the dissemination of content to the public are not to be classified as NI-ICS. These include in particular linear broadcasting, video on demand, websites, social networks and blogs.
The person initiating the communication determines its recipient(s) (section 3 para TKG)
The exchange of information via an NI-ICS is also characterised by the fact that the persons initiating or participating in the communications determine the recipient(s). This includes fixed forwarding with email services.
Number-independence (section 3 para 37 TKG)
A distinction is to be made between number-independent interpersonal communications services (NI-ICS) and number-based interpersonal communications services (NB-ICS) such as fixed and mobile services. This distinction is important above all because traditional telecommunications services are subject to stricter requirements than NI-ICS. The main difference is whether or not the services use publicly assigned numbering resources.
Exception for the “minor ancillary feature” (section 3 para 24 TKG)
Online communication functions that enable interpersonal and interactive telecommunication merely as a minor ancillary feature that is intrinsically linked to another service are an exception and are not to be classified as NI-ICS. The legislators have called upon the Bundesnetzagentur to define further exception criteria. The Bundesnetzagentur is continuing the work on elaborating exception criteria and will make the results available in due course as a supplement to its guidance.
Publicly available telecommunications services (section 3 para 44 TKG)
An online communications service is publicly available if it is available to a non-defined group of persons. This does not mean, however, that it must be possible for “everyone” to use the service. An offer for a particular group of customers or an indeterminate number of potential customers, such as members of a club, is also a publicly available offer. The same applies if there are restrictions preventing unauthorised users from accessing the service. A service is assumed to be publicly available if it is available to other potential users.
Which obligations apply to providers of NI-ICS?
The guidance contains details of the legal obligations applicable to providers of NI-ICS in Germany under the Telecommunications Act. The obligations mostly relate to public safety/security, market monitoring and consumer protection.
The guidance also includes details of further obligations under other national and European legislation (in particular relating to data protection, the EU’s Digital Markets Act and the EU’s Digital Services Act) and the relationship between the various legal regimes. These obligations are generally applicable on their own alongside the obligations under Germany’s Telecommunications Act.
