Over-the-top (OTT) players that offer communication services may be facing new legal challenges in Germany. On 11 November 2015, Cologne’s  administrative court ruled that Google’s Gmail service  would be considered a telecommunications service subject to sector-specific telecoms regulation.

Possible consequences

The administrative court’s ruling is not final yet, as Google can still appeal the decision. Nevertheless, if the higher court follows the ruling this will have a significant impact on OTT players as it would greatly increase the level of regulatory requirements that they have to comply with. 

In particular, OTT services would 

  • have to observe reporting obligations towards the Federal Network Agency; 
  • have to comply with various consumer protection regulations, including transparency obligations; 
  • be subject to stricter regulation on telecommunications secrecy and data protection. 

However, the most far reaching consequence would be that OTT services could become subject to the so called “bottleneck-regulation”. Hence, the Federal Network Agency could impose access or interconnection obligations on OTT services, in particular to ensure end-to-end interoperability. For instance, OTT services might even be obliged to deliver signals from other OTT services to their users or to ensure data portability in order to make it easier for customers to switch their OTT provider.