Start

    Is your service an OTT communications service and as such is regulated under telecommunications law in the European Union? Use our free online tool to get an answer in a few easy steps.

    Instructions for Use

    Instructions for Use

    This tool is primarily aimed at providers of number-independent communications services (so-called over-the-top (OTT) services). OTT communications services enable software- or app-based communication via the Internet. Examples are Internet(video)telephony, messenger, and e-mail.

    The tool is designed to help determine whether the service offered by your company falls within the scope of the specific telecommunications regulation of the European Union. This regulation is of considerable importance for providers of such services. OTT providers must now comply with a large number of new rules concerning their product and the processes associated with its provision, otherwise they risk heavy fines.

    Whether the service you are offering is an OTT communications service and thus subject to the new telecommunications regulation, you can find out by answering the following questions.

    Please note that a negative result does not necessarily exclude regulation under telecommunications law. The test aims to identify newly regulated OTT communications services. Traditional telecommunications services such as number-based telephony and Internet access services are generally not included. However, these services are still subject to regulation. Insofar, please also note the information provided during the test run.

    Legal Notice:
    This tool only provides an initial assessment and does not constitute legal advice within the meaning of the German Legal Services Act (Rechtsdienstleistungsgesetz). Its use does not establish a client-lawyer relationship. We would like to point out that we do not assume any liability for the correctness or completeness of the contents of this tool or for this content to be up-to-date with the current law.

    Questionnaire

    Question 1: Provision of the service within the European Union

    The new regulation only addresses services which are provided in at least one member state of the European Union (EU) (marketplace principle). Only market activity is relevant insofar. In particular, it is not necessary to have a branch in the EU.
    By our estimation, an offer via platforms such as Google’s Play Store or Apple’s App Store is sufficient to fulfil this requirement

    Question 1: Do you provide your service in at least one EU member state or do you advertise your service to people in such a member state?

    Question 2: Provision for remuneration

    Only services which are normally provided for remuneration are regulated. This condition is understood in a very broad sense. Particularly, in the digital economy, user data represents a monetary value for market players. The concept of remuneration covers:

    • – monetary payments by the user,
      – the provision of personal or other data by the user,
      – payment by third parties, in particular as a result of advertising.

    • Question 2a: Do the users of your service pay a one-off or regular fee?

    Question 2b: Although the service is free of charge to the user, are you paid in connection with its provision by third parties, in particular because the user is exposed to advertisements as a condition for gaining access to the service?

    Question 2c: c) Do you request personal data from the user of your service or other data which the user knowingly provides to you directly or indirectly, e.g. the IP address or other automatically generated information such as information collected and transmitted by a cookie?

    Question 3: Provision via an electronic communications network

    Is the communication technically enabled by means of signal transmission via an electronic communications network? It is not necessary that you are obliged to ensure the signal transmission to the user. In particular, it is sufficient if the communication data is transmitted via the Internet.

    Question 3: Is the communications data transmitted over an electronic communications network, in particular the Internet?

    Question 4: No pure content service

    The mere provision of content as such is not subject to telecommunications regulation. Thus, operators of websites or marketers of broadcasting content are not affected by the EECC, as they are not legally responsible for the transmission of the content to the user.

    Question 4: Is your service limited to providing content without you being responsible for the content’s transmission to the users?

    Question 5: Interpersonal exchange of information

    OTT communications services enable direct interpersonal and interactive information exchange between a finite number of people. The recipients of the information are determined by the people who initiate or participate in the communication. In this respect, OTT services are functionally identical to traditional (and still regulated) telecommunications services such as voice telephony.

    Please note that in the absence of interpersonality your service is not necessarily exempt from regulation. In particular, Internet access services and machine-to-machine communication are regulated under the EECC as before.

    Question 5a: Does your service allow the user to communicate with other people?

    Question 5b: Does your service allow the user to select the addressees of the communication so that the user always communicates with a finite, that is to say not potentially unlimited, number of people?

    Question 5c: Is the service designed to be interactive for both sides, i.e. does it allow the recipient to respond?

    Question 6: No minor and purely ancillary feature

    Communications services which allow communication only as a minor and purely ancillary feature to another service without which, for objective technical reasons, they cannot be used remain unregulated. An indication of such minor and purely ancillary feature is a very limited objective utility for the user and a very low level of use.

    By our estimate, a communications service may only be considered a minor and purely ancillary feature in narrowly defined exceptional cases. The European legislator explicitly excludes such a qualification if the integration of the service serves to circumvent the applicability of the rules governing electronic communications services.

    Question 6a: Is the communications service inseparably integrated into another service, meaning that, for objective technical reasons, it cannot be used without that principal service?

    Question 6b: Does the communications service have a very limited objective utility for the user and is it hardly ever used by the user in reality?

    Question 7: Number independence

    OTT communications services are characterised by the fact that they neither connect to nor allow communication with publicly assigned numbering resources (national and international call numbers). The communication takes place exclusively from app to app via the Internet. The mere use of a number as an identifier does not in itself lead to the rejection of number independence.

    Please note that number-based communications services are in no way exempt from regulation. These services will remain regulated as before.

    Question 7: Is your service able to connect to publicly assigned numbers?

    You have answered all questions. Please click on “Next” at the bottom right to receive your automatically generated assessment.

    Result

    Automatically generated Assessment

    Thank you for using our OTT test tool.

    Your service is not expected to be subject to the specific telecommunications regulation of the European Union.

    This is merely an initial, automatically generated classification.

    Contact Schalast Rechtsanwaelte for a legally binding assessment.

    Automatically generated Assessment

    Thank you for using our OTT test tool.

    Your service is not expected to be subject to the specific telecommunications regulation of the European Union.

    Please note that this does not necessarily exclude regulation by other laws, in Germany in particular the Telemedia Act (Telemediengesetz). We would be happy to support you in ensuring your compliance in this case as well.

    This is merely an initial, automatically generated classification.

    Contact Schalast Rechtsanwaelte for a legally binding assessment.

    Automatically generated Assessment

    Thank you for using our OTT test tool.

    Your service is not an “interpersonal communications service” within the meaning of the EECC and therefore not an OTT communications service as it is commonly understood.

    Please note that this does not necessarily rule out the application of telecommunications regulation. Regulated under EU law are particularly Internet access services and transmission services used for the provision of machine-to-machine communication and for broadcasting as well.

    This is merely an initial, automatically generated classification.

    Contact Schalast Rechtsanwaelte for a legally binding assessment.

    Automatically generated Assessment

    Thank you for using our OTT test tool.

    Your service is not expected to be subject to the specific telecommunications regulation of the European Union.

    Please note that this does not necessarily exclude regulation by other laws, in Germany in particular the Telemedia Act (Telemediengesetz). This applies, inter alia, to video on demand services, websites, social networks, or blogs. We would be happy to support you in ensuring your compliance in this case as well.

    This is merely an initial, automatically generated classification.

    Contact Schalast Rechtsanwaelte for a legally binding assessment.

    Automatically generated Assessment

    Thank you for using our OTT test tool.

    Your service is not expected to be subject to the specific telecommunications regulation of the European Union.

    However, please note that the question of whether a service is merely a minor and purely ancillary feature to another service allows a considerable scope of discretion and is therefore subject to a high degree of legal uncertainty. In case of doubt, we recommend that this assessment is double-checked by a qualified lawyer.

    This is merely an initial, automatically generated classification.

    Contact Schalast Rechtsanwaelte for a legally binding assessment.

    Automatically generated Assessment

    Thank you for using our OTT test tool.

    Due to its number-based nature, your communications service does not qualify as an OTT service.

    However, please note that this result does not exclude your service from regulation. It is – as it was already the case under the previous legal framework – comprehensively regulated by telecommunications law. The service and your internal processes associated with its provision must comply with the new requirements of the EECC.

    A comprehensive compliance check is therefore strongly recommended. We would be happy to support you in ensuring your compliance insofar as well.

    This is merely an initial, automatically generated classification.

    Contact Schalast Rechtsanwaelte for a legally binding assessment..

    Automatically generated Assessment

    Thank you for using our OTT test tool.

    The service you provide is expected to be an OTT communications service and is therefore subject to the provisions of the EECC and other telecommunications regulation in all EU countries where the service is provided or offered.

    Click here, to find out what to do now or contact us to be advised directly by one of our lawyers.

    This is merely an initial, automatically generated classification.

    Contact Schalast Rechtsanwaelte for a legally binding assessment.