The relevance for Lawful Interception of the EU Directive 2018/1972 EECC for OTT services

In December 2018, a new EU Directive came in force to establish the European Electronic Communications Code. This EU Directive had to be transposed to the various national laws ultimately in December 2020. Although today this did not happen yet in all EU countries, it is expected that in due time each national law will cover these changes.

What makes this EU Directive special for Lawful Interception and Legal Disclosure of Retained data?

The most important change in this context is that this Directive widens the definition for an electronic communication service from a technical definition to a more functional definition. Article 15 says “… a future-oriented definition of electronic communications services should not be purely based on technical parameters but rather build on a functional approach.” And a little further in the same article: “the definition should cover also other services that enable communication.”.

However, the next few articles within this directive refine the applicability by adding the condition that the service should be provided in exchange for (a wider definition of) remuneration. And further, the level of interpersonal and interactive communication, the level of acting as a utility function, and the usage of public national, or international numbering plans are added as parameters. In the latter case, the conclusion is that as number-based interpersonal communication services benefit from a publicly assured interoperable ecosystem they should also be subject to regulatory obligations. Whereas number independent interpersonal communication services should be subject only where the public interest requires this.

When these changes are transposed to the various national laws, it will have a broad impact on the industry as a whole as now all kinds of internet communication services that offer their services within the EU fall within the scope of this directive and thus the various national laws. This includes the many OTT services even when they only provide their services in the EU without any physical presence.

Depending on the level of regulation imposed, it is expected that in many boardrooms discussions will take place or are already taking place on how to fulfill the imposed Lawful Intercept and Legal Disclosure requirement.

For more information or help in fulfilling your compliance with these new EU regulations, please contact Group 2000.