A user of SkypeOut can make calls from a terminal connected to the internet to a fixed or mobile telephone line using the Voice over IP technique. The Court of Justice ruled in its judgment dated 5 June 2019 (C-142/18) that SkypeOut is an electronic communications service. It follows that, for this service, Skype is bound by all obligations of the Electronic Communications Act. Besides notification to the Belgian Institute for Postal services and Telecommunications ("BIPT"), these also include obligations related to data protection, security of the services, access of users to emergency services and the Ombudsman's Service.
A request for a ruling by the Brussels Court of Appeal in proceedings between Skype Communications and the BIPT led to the judgment of the Court of Justice of 5 June 2019. The core of the dispute was whether SkypeOut qualifies as an electronic communications service.
Skype Communications had filed before the Brussels Court of Appeal a request to annul a decision of the BIPT of 30 May 2016 imposing an administrative fine of EUR 223,454 on Skype Communications for providing SkypeOut in Belgium without first having given the required notification to the BIPT.
Electronic communications service
An electronic communications service is a service normally provided for remuneration which consists wholly or mainly of the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting (article 2, 5° of the Electronic Communications Act). The Electronic Communications Act excludes certain services from the definition of an electronic communications service, such as broadcasting services, including television. The definition transposes Article 2(c) of Directive 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications networks and services (the "Framework Directive").
SkypeOut
SkypeOut is an additional feature of the Skype software. Using the "Voice over IP" technique, a user of SkypeOut can make calls from a terminal connected to the internet to a fixed or mobile telephone line. Users of SkypeOut cannot, however, receive calls from those using Belgian telephone numbers.
SkypeOut is an "over the top service". This means that SkypeOut is available on the internet without the involvement of a traditional communications operator. The users of SkypeOut pay a fee to Skype Communications under prepayment terms or under a subscription agreement.
Two distinct services
According to the Court of Justice, the VoIP service involves two distinct electronic communications services. The first consists of the transmission of the voice signals from the user making the call to the gateway between the internet and the public switched telephone network ("PSTN"). The user's internet service provider is responsible for this service.
The second electronic communications service consists of the transmission of those signals on the PSTN to the fixed or mobile termination point. For this service, Skype Communications relies on telecommunications service providers authorised to send and terminate calls to fixed or mobile telephone numbers via the PSTN.
According to the Court of Justice, these services of the telecommunications service providers are communications services within the meaning of the Framework Directive. The providers cannot be considered to be responsible for this service by the users of SkypeOut since they have no contractual relationship with those users. The providers are contractually liable to Skype Communications for the transmission of the voice signals broadcast by means of SkypeOut on the PSTN.
The Court of Justice ruled that it is Skype Communications that makes the transmission of signals from the PSTN technically possible. To that end, it concludes interconnection agreements with providers of telecommunications services on the PSTN. According to the Court, Skype Communications ultimately guarantees to its clients and subscribers the VoIP services offered by means of the SkypeOut features of its Skype software.
The Court of Justice decided that the fact that Skype Communications mentions in its general terms that it assumes no responsibility for the transmission of the signals to users of SkypeOut cannot have any bearing on whether the VoIP services are classed as an electronic communications service. The fact that a user can use the Skype software without SkypeOut is not relevant either, according to the Court: even though the installation of SkypeOut on a terminal requires the prior installation of Skype, SkypeOut remains entirely autonomous in its operation.
The Court further held that the fact that the VoIP service provided by SkypeOut is also covered by the definition of an "information society service", does not imply that it cannot be classed as an electronic communications service.
Consequences
Since SkypeOut is an electronic communications service, Skype should have complied with all provisions of the Electronic Communications Act. In the dispute with the BIPT, this leads to the conclusion that Skype should have notified the BIPT of its SkypeOut service.
However, the obligations of the Electronic Communications Act extend further than that. Among other things, this means that Skype must comply with the obligations regarding data protection, the security of the service, access of users to emergency services and the Ombudsman's Service of the BIPT.
