June 17, 2021

T-Break

Let'S Talk Law

Companies of OTT solutions qualify as DCPSs

The Federal Supreme Court docket not long ago confirmed(1) a reduce-instance court’s selection(2) that about-the-top (OTT) provider vendors do not qualify as telecoms support vendors (TSPs) but somewhat as derived communications provider vendors (DCSPs) under the Federal Act on the Surveillance of Put up and Telecommunications (SPTA) and its ordinances.

Points

Threema is a smartphone app made by Threema GmbH. It consists of an quick messaging assistance for messages and information as nicely as a voice simply call company. The assistance is supplied through the Internet but does not constitute an online access services by itself. These a company is commonly known as an ‘OTT service’.

The Put up and Telecommunications Surveillance Company (PTSS), which is in cost of the implementation of publish and telecoms surveillance steps in Switzerland, determined that Threema GmbH certified as a TSP. On this floor, the PTSS demanded Threema GmbH to perform true-time surveillance of secondary telecoms facts for telephony and multimedia expert services. Threema GmbH appealed versus this selection to the Federal Administrative Court (for even more specifics, be sure to see “Telecoms surveillance legislation: Federal Administrative Court policies immediate messaging application not a telecoms services“). The Federal Administrative Court overruled the PTSS’s choice and held that Threema GmbH was not a TSP less than the relevant telecoms surveillance laws. The Federal Supreme Courtroom verified that choice on charm.

Lawful context

TSPs are subject to far more intensive cooperation duties than DCSPs less than the applicable telecoms surveillance laws (the SPTA and its ordinances). If it qualified as a TSP, Threema GmbH would have had to have complied with abundant cooperation obligations (eg, the serious-time surveillance of secondary telecoms info for telephony and multimedia providers, as instructed by the PTSS).

Decision

Nonetheless, the Federal Supreme Court docket, in line with the Federal Administrative Court docket, disagreed with this qualification and clarified in its the latest determination that providers of OTT providers are not TSPs. The Federal Supreme Court docket emphasised in certain the adhering to factors in its interpretation of the law:

  • A ‘TSP’ is a supplier which delivers the transmission or reception of facts by wire or radio. OTT assistance vendors neither directly nor indirectly supply world wide web accessibility and do not assume any duty towards their shoppers for the transmission of the data by way of the World wide web. The mere feeding of information into a community ought to not be recognized as a transmission of info for third parties given that the transmission of data typically comprises the full details transmission from the sender to the all-natural or legal recipient. In truth, this would in any other case constitute an extremely broad interpretation of the legislation and hardly any companies would not qualify as telecoms expert services offerings. In other words and phrases, the definition of ‘derived communications services’ would be devoid of any substance.
  • Notoriously, there has never ever been a shut link between the community and the interaction provider. As a result, there have not been major technical developments or novel facts since the enactment of the SPTA which would justify an additional interpretation of the regulation.
  • From a teleological level of check out, the existing legislation requires into account the broader objective of the fight towards criminal offense and the investigation of felony functions. To that close, the legislature has supplied the Federal Council the competence and versatility to broaden the duties of DCSPs – specifically, the Federal Council could involve DCPSs which provide expert services either of key financial value or to a large selection of consumers to keep and offer all or some of the info essential of TSPs. By distinction, TSPs may possibly also be exempted from sure statutory obligations. Appropriately, there is no need to subsume OTT companies below the definition of ‘TSPs’ in telecoms surveillance legislation.

Remark

This conclusion provides a welcome clarification on the qualification of OTT provider vendors as DCSPs underneath the telecoms surveillance legislation. Nevertheless, OTT service companies are not fully exonerated from any obligations they will have to adhere to many obligations in their part as DCSPs.

Further more, with this conclusion and the ongoing revision of the Telecommunications Act (TCA), the time period ‘provider of telecoms services’ is no longer applied constantly in the SPTA and the TCA, foremost to a discrepancy in the definition of the similar term underneath the two functions. Whilst OTT company companies do qualify as DCSPs below the SPTA, they may be regarded as as TCPs in the context of the revised TCA, according to the dispatch thereto. Consequently, OTT service companies are recommended to reassess their position on a case-by-circumstance foundation to decide which rules and relevant obligations use to them.

Endnotes

(1) Federal Supreme Court Determination 2C-544/2020, 29 April 2021, available here (in German).

(2) Federal Administrative Court docket Decision A-550/2019, 19 Might 2020, accessible listed here (in German).