Below, please find issue 3 of ENSafrica's telecoms and media in brief, a snapshot of the latest telecommunications and broadcasting developments in South Africa.
- regulations and notices
- GG42520 - NN895: extension of the closing date for written representations on the Draft Findings Document in the Inquiry into Subscription Television Broadcasting Services
- the closing date for written representations on the Draft Findings Document has been extended by 60 days from 21 June 2019 to 27 August 2019 at 16h00. To read a summary of the Draft Findings Document, click here.
- any enquiries in relation to this notice must be submitted via
- Ms Honey Makola (project manager)
- tel: +27 12 568 3665
- email: email@example.com
- case law/in the news
- Skype Communications Sàrl v Institut belge des
services postaux et des telecommunications [The Belgian Institute
of Postal Services and Telecommunications]
- on 5 June 2019, the Court of Justice of the European Union ("CJEU") published its ruling on the classification of SkypeOut in the EU, following a request for a preliminary ruling from the Belgian courts. Skype is a Voice over Internet Protocol ("VoIP") service whereas the SkypeOut component is an interconnected VoIP service that allows the service to dial out to landline and mobile numbers.
- the CJEU determined that the SkypeOut service is an electronic communications service ("ECS"), as defined in the Framework Directive (Directive 2002/21/EC), as amended. The case is interesting because the definition of ECS under the Electronic Communications Act, 2005 ("ECA") applicable in South Africa, is relatively similar to the definition contained in the Framework Directive.
- the Framework Directive defines ECS as "a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services ... which do not consist wholly or mainly in the conveyance of signals on electronic communications networks." While the ECA defines ECS as "any service provided to the public, sections of the public, the State, or the subscribers to such service, which consists wholly or mainly of the conveyance by any means of electronic communications over an electronic communications network, but excludes broadcasting services." (our emphasis)
- the CJEU held that the relevant provisions of the Framework Directive "... must be interpreted as meaning that the provision, by a software publisher, of a feature offering a VoIP service which allows the user to call a fixed number or mobile number covered by a national numbering plan from a terminal via the public switched telephone network ("PTSN") of a Member State constitutes an 'electronic communication service' within the meaning of that provision, provided that, first, the software publisher is remunerated for the provision of that service and, second, the provision of that service involves the conclusion of agreements between that software publisher and telecommunications service providers that are duly authorised to send and terminate calls to the PTSN."
- the effect of the CJEU's judgment is that SkypeOut should be considered a regulated telecommunications service and will therefore be subject to various regulatory obligations in the EU. There are wider implications that could stem from this finding. It is possible that if the same question were to be considered by South African courts, taking into account the similarity of the definitions used and the only authority available being the CJEU's judgment discussed herein, that a court in South Africa would come to the same conclusion.
- Skype Communications Sàrl v Institut belge des services postaux et des telecommunications [The Belgian Institute of Postal Services and Telecommunications]
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.