The Court of Justice has ruled in Skype Communications Sàrl v Institut belge des services postaux et des télécommuniations Case C-142/18 on whether a Voice over Internet Protocol (VoIP) service which allows the user to make an outgoing call to a mobile or fixed number is an ‘electronic communications service’ under Article 2(c) of Directive 2002/21/EC (the Framework Directive).
The court held that this would constitute an electronic communications service as long as the software publisher received remuneration for it and that the service provision involved contracts between the software publisher and telecoms service providers who may send and terminate calls via the public switched telephone network.
The ruling was made in the context of a dispute between Skype Communications Sàrl (Skype) and the Belgian regulator on its imposition of an administrative fine on Skype for providing an electronic communications service without first notifying it, as required under Belgian law. The dispute was about Skype’s ‘SkypeOut’ service, which allows users to make calls from a computer or tablet to a landline or mobile using VoIP.
The Belgian courts referred the case to the Court of Justice. The court ruled that a voice-over-internet protocol service was an “electronic communications service” under the Framework Directive and so is subject to regulation as such.
Although the VoIP service provider did not own all the infrastructure used to transmit voice signals sent from its VoIP service to recipients of calls using mobile or fixed line telephones on the public switched telephone network, it was responsible for transmission of its users’ calls because it had entered into contracts for their transmission with the public switched telephone network providers. The VoIP service provider could not decide that its service was not an electronic communications service by stating in its terms that it was not responsible for transmitting signals.
The court considered the following factors, and concluded that they did not prevent the VoIP service being an electronic communications service:
- the VoIP service used an internet access service, which was an electronic communications service in itself;
- the VoIP service was a feature of software offering a number of other services that were not electronic communications services; and
- the VoIP service was also an information society service. The exclusion for information society services only applied to those that mainly transmitted signals on electronic communications networks.
