The Court of Justice has ruled in Google LLC v Bundesrepublik Deutschland Case C-193/18 on whether a web-based email service is an “electronic communications service” under of Article 2(c) of Directive 2002/21/EC (the Framework Directive). The court held that such a service, which does not itself provide internet access, does not consist of the transmission of signals on electronic communications networks and is therefore not an electronic communications service under Article 2(c).
The ruling was in the context of a dispute between Google and the German Federal Agency for Electricity, Gas, Telecommunications, Post and Rail Networks (the BNA) concerning Google’s web-based email service, Gmail, which is a so-called “over the top” media service.
The BNA determined that Gmail constituted a “telecommunications service” under German law. As a result, it said that Google should register with it and Google’s failure to do so gave rise to a penalty payment. Google challenged the decision and the German court referred three questions to the Court of Justice regarding whether a web-based email service, which does not itself provide internet access, is an electronic communications service under Article 2(c) of the Framework Directive.
The court ruled that the Gmail service was not an electronic communications service.
The court considered the fact that, when providing its service, Google uploads to and receives from the open internet, via its email servers, the data packets relating to the emails sent and received by the holders of a Gmail account. Therefore, according to the court, it was the internet access providers and the operators of the various networks which transmit the signals necessary for any web-based email service to function.
The fact that the supplier of a web-based email service actively participates in the sending and receipt of messages, whether by assigning to the email addresses the IP addresses of the corresponding terminal devices or by splitting those messages into data packets and uploading them to, or receiving them from, the open internet for the purposes of transmitting them to their recipients, did not appear to the court to be sufficient to enable that service, on the technical level, to be regarded as consisting ‘wholly or mainly in the conveyance of signals on electronic communications networks’ under Article 2(c) of the Framework Directive. Accordingly, given the absence of any other element establishing Google’s responsibility regarding those holding an email account with Gmail for the transmission of signals necessary for that account’s functioning (which it was for the referring court to verify), the Gmail email service could not be classified as an ‘electronic communications service’ under Article 2(c).
The ruling follows a similar discussion in Skype Communications Sàrl v Institut belge des services postaux et des télécommuniations (IBPT) Case C-142/18, although in that case the court took the opposite view.
