Email services can usually not be qualified as telecommunications services. These were the decisions of both the European Court of Justice (ECJ, judgment of June 13, 2019 – C-193/18) and the Higher Administrative Court of Münster (OVG Münster, judgment of February 5, 2020 – 13 A 17/16) in two recent judgments. Both courts determined that the "Gmail" email service is not subject to the German Telecommunications Act (Telekommunikationsgesetz – “TKG”). These judgements should put an end to the dispute as to whether an employer is subject to telecommunications secrecy if it allows its employees to use their company email accounts for personal purposes.
The classification of so-called "over-the-top" (OTT) services under the TKG has long been a controversial question. The term “OTT service” refers to services that are offered via the Internet, without the provider of the service participating in the Internet infrastructure. Internet access is provided by the access and network operators. The OTT services are based on this principle. Examples of this can be streaming, messenger, telephone or email services also, for example, in an employment context. The employer does not contribute to the general internet infrastructure, but merely provides its employees with the services, e.g. an email account, which technically run through the general Internet infrastructure.
Section 3 No. 24 TKG is decisive in determining whether a service is subject to the TKG. This definition qualifies as telecommunications services all services that are generally rendered against remuneration and consist entirely or predominantly of the transmission of signals via telecommunications networks and is based on Art. 2 lit. c 2002/21/EC. The European Court of Justice (ECJ) has ruled in this regard that Google's "Gmail" email service is not a telecommunications service.
The ECJ bases its judgment regarding “Gmail” on who is responsible for the technical signal transmission. With "Gmail", data packets containing the emails are sent over the general internet, i.e. Google does not carry out the technical signal transmission itself. However, the ECJ also considers it sufficient if a service provider is responsible for the signal transmission to the customer on the basis of other grounds. According to the ECJ, no such grounds exist with regard to “Gmail”. The fact that Google also operates technical internet infrastructures is irrelevant. Relevant here is the specific service and, in this case, "Gmail" is not operated specifically via Google's own network, but via the telecommunication networks of third parties.
The Higher Administrative Court of Münster adopted this assessment in its final judgment. The decision of the ECJ arose from a legal dispute between the German Federal Network Agency (BNetzA) and Google. The BNetzA supervises and regulates, inter alia, the telecommunications market. The public authority took the view that Google is to report its "Gmail" service pursuant to Section 6 TKG. Google defended this view before the administrative courts. The Higher Administrative Court of Münster finally asked the ECJ some questions about the interpretation. The Higher Administrative Court then had to make the final decision based on the ECJ's specifications. The question of the reporting obligation according to Section 6 TKG depends on the question described above, whether Google provides a telecommunications service with "Gmail". The Higher Administrative Court of Münster, as well as the ECJ, rejected this and also based their reasoning here on the lack of responsibility for the technical signal transmission.
The classification specifically means that Google does not need to report its "Gmail" service to the BNetzA pursuant to Section 6 TKG. However, the (non-)classification has even more far-reaching implications. On the one hand, the data protection supervisory authorities' responsibilities change. While the BfDI [German Federal Commissioner for Data Protection and Freedom of Information] is responsible for telecommunications services, the state data protection authorities are responsible for other digital services. Accordingly, the conference of independent data protection authorities [DSK] has recently passed a resolution that redefines the regulation regarding responsibilities. And, on the other hand, the law enforcement access rights are changing. While Section 109 et seqq. TKG applies to telecommunications services, no special standards exist for other digital services. The general search and information powers apply here.
More important are the effects on the handling of emails within the company, though. In the opinion of some courts and supervisory authorities, when an employer made email accounts available to its employees, the employer was previously considered a service provider within the meaning of the TKG, provided that it also allowed its employees to use the email accounts for private purposes. According to this view, the employer was subject to the TKG, i.e. it could only access the emails in the respective mailbox without the consent of the employee in the cases regulated in Section 88 (3) TKG. However, based on the considerations of the ECJ and the Higher Administrative Court in the Gmail decisions, as well as the communications of the DSK on the changed responsibilities, there is no longer any room for the previous view the public authorities held. With regard to emails, the employer only operates a service which uses external infrastructures for signal transmission, just as Google does. Therefore, the email service itself is a content service and does not execute signal transmission. This means that emails in company accounts are not subject to telecommunications secrecy should the company accounts also be used privately. This makes it easier for employers to access employee emails, for example, in the event of illness.
According to the opinion of the ECJ and the Higher Administrative Court of Münster, email services are generally not considered telecommunication services as they are not responsible for the technical signal transmission to the customer. This can be transferred to the situation where an employer provides its employees with an email account. The technical signal transmission is then also not the responsibility of the employer, but of the internet providers. Therefore, the employer does not provide a telecommunications service with regard to emails. This means that the opinion occasionally held that an employer is a service provider when private use of the email accounts is permitted, and that emails are therefore subject to telecommunications secrecy, no longer has a basis.
It remains to be seen whether future legal developments will change this classification. On the one hand, the EU continues to plan the adoption of the so-called ePrivacy regulation. This could redefine the distinction between telecommunications and OTT services. However, the regulation will be a long time coming, as the EU legislative bodies have so far not been able to find a mutual position. On the other hand, regardless of this, the TKG will be amended at the end of 2020. The reason for this is the implementation of the European Electronic Communications Code. The key issues paper of the responsible federal ministries provides for a change and further differentiation of the term "telecommunications service". Depending on the specific wording of the law, it must then be assessed again how email services are to be classified under the new legal situation.