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As tech and communications technologies continue to converge, the line between what consumers expect of their tech gadgets and conventional telecoms voice and messaging services has blurred. Take “Alexa calling” as an example. The ability to shout “Alexa, Call Mom!” from your kitchen is an attractive feature to many multitaskers. The current service is offered in a number of ways, including as an over-the-top voice over internet protocol (VoIP) add-on to Alexa, allowing free internet calls to other connected Alexa users.

Like Amazon, many tech giants and social media platforms are increasingly looking for ways to extend the reach and integration of their tools by exploring the use of messaging, voice and video calling capability as complementary or diversified aspects of their services.

Tech reach of the new Code

For many years, over-the-top communications platforms which provided a voice or messaging service over the internet were not regulated by conventional telecoms rules. The exception was interconnected voice services, such as SkypeOut, which allowed VoIP users to connect not only to other VoIP users over the internet but also to conventional local or international telephone numbers.

This is about to change. From 2020, both conventional and over-the-top internet communications services will be regulated under the EU Electronic Communications Code (Directive 2018/1972)(the Code).

The Code must be implemented across the EU by 21 December 2020. Work is underway in the Irish Department of Communications on transposing the Code into Irish law. It remains to be seen whether, with the disruption of COVID-19, Irish transposition will be delayed. However, it is not envisaged that any delay would be significant.

Interpersonal communications services

The Code will modernise and consolidate electronic communications law in many areas. The most significant aspect of the Code for current purposes is its reach into the tech services space.

The Code will regulate “electronic communications services” which includes, amongst other things, “interpersonal communications services” (ICS). An ICS is defined to mean a service, normally provided for remuneration, that enables direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons. This will capture a broad range of tech services which comprise, or include, communications capability such as email, instant messaging, chat/text, VoIP and, of course, conventional telephone calling/ text messaging, etc.

Two types of ICS will be regulated:

  • Number based ICS, i.e. a communications service which connects with, or enables connection with, local or international telephone numbers e.g. conventional fixed and mobile telephone services (NBICs), and

  • Number-independent ICS, i.e. a communications service which does not connect with, or enable connection with, local or international telephone numbers e.g. email, instant messaging, most non-interconnected VoIP services (NIICs).

NBICs are already regulated under the current framework, whereas NIICs will be regulated for the first time.

The dividing line between NBICs and NIICs is significant. NBICs are subject to the full scope of electronics communications regulation under the Code, including weighty consumer protection, pricing transparency and network security obligations. NIICs, however, are subject to more limited regulation, e.g. a more limited form of consumer regulation and network security obligations. NIICs will not be subject to national General Authorisation regimes and so, in Ireland, will not be required to pay a revenue levy to the national regulator, ComReg.

When is a communications feature not an ICS?

The Code will not apply to services which enable interpersonal and interactive communications merely as a minor or purely ancillary feature that is intrinsically linked to another service. This is an important qualification that many tech services will undoubtedly examine closely.

An example of an ancillary communications service under the Code is a communications channel in online games. The Code stops short, however, of blessing these channels entirely and indicates that their exemption will ultimately depend “on the communication facility of the service”. In addition, the exemption is intended to apply only in exceptional circumstances and is to be interpreted narrowly. It is clear, then, that the Code will require a case by case assessment of many connected tech services to assess whether:

  • A communications channel offered as part of a tech service is truly a minor ancillary feature, or

  • A communications channel is integral to the overall end user experience and goes beyond a minor ancillary feature.

For example, we might imagine that the ability to tell a connected fridge to “Order milk” is an ancillary function to the fridge – but the ability to directly call your local Tesco shop or your Mom from the depths of your empty fridge might not.

The definitions of NBICs and NIICs under the Code contain subtleties which will require a detailed analysis of nuanced offerings. This will be particularly so if there is any uncertainty as to whether part or all of a given service satisfies the definition of NBICs or NIICs or indeed comes within the scope of the Code at all.


The tech reach of the new Code is significant.

From December 2020, any new or existing tech service that contains a communications capability will now require a consideration of the new rules under the Code. This consideration will need to be hard-wired into the product/service design processes of tech service organisations.

For more information, please contact a member of our Technology team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

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