The UK still pushing ahead with implementing wide ranging European regulatory changes, but obligations for many "over the top" providers are likely to be postponed.

The European Electronic Communications Code (EECC), which overhauls the regulatory framework for all EU Member States, must be transposed into UK law on or before 21 December 2020. The EECC will result in a number of changes to existing communications regulation in the UK (including to the Communications Act 2003 and Ofcom's General Conditions).

Ofcom and the Department for Digital, Culture, Media & Sport (DCMS) have been consulting on how best to implement the changes in the UK. Over the summer, the DCMS published its responses to the public consultation on implementing the EECC in the UK, setting out its proposed changes to UK legislation to implement the EECC..

Am I covered by the EECC? The EECC will continue to cover traditional Electronic Communications Networks and Services (ECNs and ECSs respectively), such as mobile and fixed networks, MVNOs and ISPs. However, the EECC now also extends the scope of ECS to include 'interpersonal communications services'. The addition of this category of services means that 'over-the-top' (OTT) providers, like Skype and WhatsApp, will now also fall into the communications regulatory environment for the first time (unless the 'interpersonal communications services' are minor and purely ancillary to a non-communications service, such as a communication channel in online games).

The EECC does not regulate e-commerce, information society services and the exercising of editorial control over online content or broadcasts.

To see if you are covered by the new code, download the PDF below.

When will the new changes apply in the UK?

  • The UK has to adopt the code into national law by 21 December 2020.
  • The UK was involved in the negotiations for the EECC and the EECC is still viewed by the DCMS as best practice, Brexit notwithstanding. The DCMS has confirmed that it will press ahead with the implementation and that only a small number of EECC requirements will be deprioritised and not be implemented into UK law by 21 December 2020.
  • In light of COVID-19, Ofcom issued a statement on 7 May 2020 that communications providers will have at least 12 months to implement any changes that are finally implemented (regardless of the 21 December implementation date), so that resources can be allocated to respond to the crisis.

What major changes can be expected?

  • OTT providers (like Skype and WhatsApp) will now also have to comply with certain provisions of Ofcom’s General Conditions of Entitlement
  • Additional consumer protection measures will apply to OTT providers, including provisions that will need to be included in contracts, transparency and information requirements, and equivalency access for disabled users
  • Fixed line and mobile providers will also face a number of increased requirements around regulation of bundle offers, enabling easier switching between services and prohibitions on locking of devices.

"OTT" provider obligations to be de-prioritised

  • The obligations of number-independent 'interpersonal communications services' (NI-ICS) providers (such as WhatsApp or Zoom) are likely to be de-prioritised as part of the implementation and will be implemented at a later date.
  • As there are no notification or registration requirements in the UK, any OTT communications services providers that will be classified as an NI-ICS will not need to do anything specific when the Code does kicks in. When the Code kicks in, NI-ICS are still however likely to need to have appropriate security measures in place, and if directed by Ofcom, NI-ICS will also have to ensure that their services can interoperate with other NI-ICS.

Am I regulated by the new EU Electronic Communications Code?

Why is the European electronic communication code relevant to me?

  • The European Electronic Communications Code (“Code”) will revise and update the current European communications regulatory framework
  • All traditional telephony, mobile, SMS, MMS, broadcasting transmission services, machine to machine communications, VoIP and over-the-top (OTT) services will be covered by the new Code
  • Member States, including the UK, need to adopt the code into national law by 21 December 2020
  • The UK government and Ofcom are finalising their proposals to implement the Code in the UK

If I am an “ECS” or an “ICS” under the new code, what does that mean for me?

  • All “Electronic Communication Service” (ECS) providers need to comply with Ofcom’s General Conditions of Entitlement (GCs)
  • “Interpersonal Communication Service” (ICS) providers will now also need to comply with the GCs – they are a sub-category of ECS
  • A number of provisions will apply to ICS providers and relate to consumer protection matters, including provisions that will need to be included in contracts, transparency and information requirements, and equivalency access for disabled users
  • There are also a number of increased requirements around regulation of bundle offers, easier switching between services and prohibitions on locking of devices that will apply to fixed line and mobile comms ECS providers

When will these changes happen?

  • The UK will need to adopt the code into national law by 21 December 2020
  • The obligations of NI-ICS providers (such as WhatsApp or Zoom) are likely to however be de-prioritised as part of the implementation of the Code and will be implemented at a later date 
  • In order for suppliers to meet the new consumer protection requirements, Ofcom will also allow providers at least 12 months from the date of its “statement” (due this Autumn) to implement the new rules  

Where can I find the proposed changes?