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Out-Law News 2 min. read

Skype a telecoms operator, Belgian authorities claim

The Microsoft-owned communications service provider Skype is a telecoms operator and should be required to hand over information relevant to communications made via its platform to law enforcement agencies, authorities in Belgium have claimed.

Skype refused to disclose data from messages and calls made by one of its users after being asked to do so by police conducting a criminal investigation, according to a report by Reuters.

The company has now been ordered to appear before a court in Belgium where it will be determined whether Skype is required by Belgian law to disclose the information to the Belgian authorities, the report said.

"The judicial question is whether Skype is also a telecoms operator," a spokesman for the court in Mechelen said, according to Reuters.

Out-Law.com asked Skype for a comment on the case but received no response.

However, according to a report by the Register, a spokesperson for Microsoft said: "Law enforcement plays an important role in keeping communities safe but the legal process should also protect personal privacy, respect international borders and recognise technological differences. This case before the court in Mechelen, Belgium, addresses some of these important issues."

A spokesman for the European Telecommunications Network Operators' Association (ETNO) said the case was a "good example" of the ongoing debate about whether traditional communications providers, like telecoms operators, and relatively new challengers in the market like Skype, which facilitates communications between individuals over others' existing communications infrastructure, should be treated differently in a legal context.

Traditional telecoms operators and providers of over-the-top (OTT) internet-based communications services should be subject to the same rules where the service delivered to consumers is essentially the same, the ETNO spokesman told Out-Law.com. He said it is in consumers' interests for the companies to be regulated the same way in these instances but that there are economic reasons why there should be equal treatment too.

"Clearly if some players in the economy are regulated more than others it poses a competitive advantage issue," the ETNO spokesman said.

To ensure equal treatment, law makers could consider placing the OTT service providers subject to existing rules that traditional telecoms companies are bound by or alternatively by removing regulations altogether. The ETNO spokesman said the right approach would depend on what area of regulation is at issue.

"It is about asking ourselves how we might reorganise regulation which might mean lifting it in some cases and in other cases extending [the scope of] it," the spokesman said.

The ETNO spokesman said one area where regulation could be lifted to ensure a level playing field between communications providers could be in the area of e-privacy. He said it is wrong that telecoms companies should face different obligations from OTT service providers on how they handle location data, for example, since the telecoms companies are subject to additional requirements under the Privacy and Electronic Communications Directive than face all other businesses under general EU data protection laws.

The European Commission earlier this month outlined plans to make OTT communication service providers subject to the same regulatory regime as traditional communication providers as part of a digital strategy it published.

The ETNO spokesperson said cases like the one facing Skype in Belgium add to the need for "urgency" from EU law makers in implementing the policy it has outlined.

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