New requirements for OTT services

If you offer OTT services, such as chats, e-mails or Voice-Over IP, you will most likely have to take technical and organisational measures to enable monitoring measures by the authorities, as well as the automated and manual retrieval of data. In the case of the automated information procedure, the authorities can already demand the implementation of the measures since 01.12.2021.

On 01.12.2021, the new Telecommunications Act (TKG) came into force, with which the European Code for Electronic Communications - Directive (EU) 2018/1972) - is implemented.  The essential innovation is the extension of the material scope of application of the TKG to services that enable a form of interpersonal communication, so-called "over-the-top services" (OTT- services for short). These are primarily chats, e-mails and voice over IP.

Exceptions to the TKG are only likely to a small extent

The definition of interpersonal communication service does not include services aimed at an endless number of users, such as broadcasting, video-on-demand services, websites, social networks and blogs.

Furthermore, the definition of interpersonal communication service does not include services "which enable interpersonal and interactive telecommunication merely as a subordinate secondary function inseparably linked to another service" (cf. § 3 no. 24 TKG).

While this definition aims to create exceptions to the scope of the TKG, it primarily creates further ambiguity. This is because the TKG does not provide any further indications as to which services are covered by this.

However, a look at the explanatory memorandum to the TKG and the recitals to Directive (EU) 2018/1972 (Recital 17) quickly make it clear that the scope of application of this exception is narrow. The starting point of an assessment should be the objective viewpoint of the end user. One characteristic when an interpersonal communication could be considered insignificant is when it has very limited objective use for the end-user and is hardly used in reality by end-users (Recital 17 Directive (EU) 2018/1972).

As the only somewhat more concrete example of a possible exception, both the explanatory memorandum to the TKG and Recital 17 to Directive (EU) 2018/1972 mention communication in online games. But here, too, the example is only very cautiously mentioned as a possible exception. The explanatory memorandum to the TKG also clarifies that chat functions that can be used independently without the online game can constitute an interpersonal communication service.

According to the explanatory memorandum to the TKG, the Federal Network Agency is expected to apply further delimitation criteria in the assessment of individual cases. These are to be defined in consultation with the authorised bodies and with the participation of the associations and manufacturers.

Comprehensive catalogue of obligations for providers of OTT services

Providers of OTT services must implement technical and organisational measures to enable official monitoring measures (cf. § 170 TKG), as well as the automated (cf. § 173 TKG) and manual retrieval (cf. § 174 TKG) of data. The automated retrieval of data only concerns number-based telecommunications services.

The measures are essentially technical measures that are intended to enable a fast and smooth process from the request of an authority to the monitoring or data transfer of the service provider. The TKG specifies which data must be kept available. Third parties can be commissioned to fulfil these technical and organisational measures.

All details on the type and scope of technical and organisational measures for surveillance measures and the manual information procedure are specified by the Telecommunications Interception Ordinance (TKÜV) and the Technical Directive for implementing legal measures for telecommunications surveillance and information disclosure (TR-TKÜV). The deadline for implementation is generally one year, in exceptional cases two years if non-standardised technologies are used, from 09.02.2022.

The Technical Directive for the Automated Information Procedure (TR-AAV) applies to the automated information procedure. There is no implementation deadline here, so that implementation by the BNetzA can be expected from 01.12.2021.