Electronic Communications Sector Research Articles

Privacy and Personal Data Protection v. the Protection of National Security and the Fight Against Crime: An Analysis of EU Law and Judicial Practice

Considering the risks that accompany technological progress, the need for personal data protection has significantly increased in today’s world. While digital technology offers many benefits, it has also created unprecedented opportunities for surveillance, posing a threat to human rights and democratic values. Fighting against crime and safeguarding national security are important legitimate aims, and processing data related to electronic communications is one of the means for their achievement. At the same time, the state’s extensive power can create a sense of constant surveillance and give rise to a chilling effect. The wide discretion of state authorities and the covert nature of implemented measures generate a high risk of human rights violations. Therefore, one of the main challenges in human rights law is finding a balance between combating crime and protecting national security, on the one hand, and safeguarding human rights, on the other. Over the past few years, the Court of Justice of the European Union has delivered significant judgments on the compliance of legal regimes governing the retention and transmission of electronic communications data with EU law. When ensuring a fair balance between different interests, the CJEU appropriately considers both the threats present in the modern world and the importance of human rights protection. The present article discusses the processing of personal data in the electronic communications sector under EU law and analyses the development of the case law of the Court of Justice of the European Union.

Cost-Efficient Network Planning for the Cross-Border Baltic Corridor-A Study.

Performing 5G coverage planning across borders introduces real-life challenges related to legalities, intercountry agreements, and binding documents. This work provides RF network modelling exercise results to provide uninterrupted 5G coverage to the Via Baltica and Rail Baltica transport corridors crossing Estonia and Latvia and on the border with Lithuania, as well as the Tallinn-Tartu-Valga and Valka-Valga roads (Latvia-Estonia), capable of cross-border 5G services. The study starts by identifying and interviewing stakeholders from different sectors of operation in the Baltic states and Europe and then provides an overview of some of the main legal acts and documents regulating the electronic communications sector in the Baltic states and Europe. Furthermore, 5G network requirements are proposed. In addition, the necessary and existing passive and active infrastructure is described, including spectrum management-related analysis, where the RF bands 700 MHz and 3500 MHz are analysed. Finally, coverage planning is performed. The network modelling results aim to foresee the number of new sites that need to be built on the said transport corridors, also examining the existing infrastructure for such purposes. Additionally, an estimated timeline for building the new sites is provided.

Environmental sustainability regulatory and policy practices and actions of telecoms regulatory authorities

Creating climate-neutral electronic communications is a sharedresponsibility for the industry and urgent action is needed in the face ofwarming trends due to global climate change. Despite this, environmentalsustainability has just started to receive attention in the regulation of theelectronic communications sector. The national telecoms regulatory authoritiesoverseeing the sector in the different countries are key in driving related policyand regulation. However, as to date, hardly any paper has dealt with theirrespective practices in a comparative manner. Therefore, the aim of this paperis to fill this gap, to review the relevant environmental sustainability regulatoryand policy practices and actions of telecoms regulatory authorities, in order toprovide a comprehensive and high-level comparison of sustainability initiativesin the electronic communications sector. It is hoped that this will serve as astarting point for launching a discourse in the industry and for properlypositioning the green transition in electronic communications regulation.

Environmental sustainability in the regulation of electronic communications

Creating climate-neutral electronic communications is a shared responsibility for the industry and urgent action is needed in the face of warming trends due to global climate change. Despite this, environmental sustainability in the regulation of the electronic communications sector in Hungary has not yet received sufficient attention, nor has there been any related research, articles or studies. Therefore, the aim of this paper is to fill this gap, to review the relevant international, EU and domestic regulatory situation and trends, to provide a comprehensive and high-level picture of sustainability initiatives in the electronic communications sector and to evaluate it in order to suggest possible directions for domestic regulatory action. It is hoped that this will serve as a starting point for launching a discourse in the industry and for properly positioning the green transition in electronic communications regulation.

End(s) of the Harmonization in the European Union: Centrifuging or Engineering?

ABSTRACT The European Union (EU) harmonization has an evolving and dynamic nature. Different theoretical approaches (e.g., regulatory competition, coevolution, reflexive harmonization) are often echoed to delve into the EU harmonization. This article, going through these theories, endeavors to explain the harmonization discourse in the EU with a focus on the electronic communications sector. To understand the trajectory of the EU harmonization in this sector, two areas (“network access” and “spectrum regulation”) are selected as the subject-matter of the research. In conclusion, the legislative steps taken so far are found to restrict regulatory experimentation and innovation that this sector needs in the face of increasing challenges.

Transition from asymmetric to symmetric regulation of competition in the electronic communications sector in Bulgaria

In the electronic communications sector, the regulation of undertakings with significant market power is described as "asymmetric regulation" to indicate that obligations are imposed only on companies with leading position. The asymmetric regulation is subject to periodic review with a view to its complete abolition and replacement by the application of competition law. "Symmetric regulation" applies to all undertakings, regardless of their market position, and includes obligations to interconnect their networks, provide access to network elements, physical infrastructure, numbers, services and databases. From 2021, symmetric regulation is going to be the main method for ensuring and protecting competition in electronic communications markets in Bulgaria.

Koncentracija ponude na odabranim tržištima sektora elektronskih komunikacija Srbije

The electronic communications sector is very important sector of a national economy. It provides an opportunity for facilitating business activities and it is a good area for investment. A small number of operators and a large number of users operate in most markets of the electronic communications sector. The conditions under which electronic communications services are available to users in different countries diverge, among other things, due to the degree of liberalization of individual markets in these countries. The Republic of Serbia has significantly liberalized this sector of economic activity by adjusting it according to the regulations of the European Union. However, certain entry barriers have remained, primarily related to the licenses that operators need to obtain to operate in the Serbian market. The paper aims to investigate the level of concentration in selected markets of the electronic communications sector, namely: mobile telecommunication networks and services, broadband Internet services and media content distribution. The research showed a high level of concentration measured by the Herfindahl-Hirschman index in all three markets. A further increase in concentration is expected in all analyzed markets in the short term. These research results require more attention from regulatory bodies because they increase the possibility of some form of non-competitive behaviour by undertakings.

Slovak Telekom/Deutsche Telekom AG: The Interplay Between EU Competition Law and Sector Specific Rules in the Electronic Communications Sector

Abstract Case T-827/14, Deutsche Telekom AG v Commission, and Case T-851/14 Slovak Telekom a.s. v Commission, Judgments of 13 December 2018. Granting access to a product or service, which is required under sector specific regulation, on unfair, unreasonably complicated or delayed terms amounts to constructive refusal to supply, without the need to demonstrate that the regulated access product or service is an indispensable input. In addition, a margin squeeze test, to assess whether the difference between wholesale and retail prices is negative, should be carried out on a year-by-year basis, and not on a multi-period basis. Finally, when a parent is jointly and severally liable for anti-competitive conduct of its subsidiary, the liability of the parent can exceed that of the subsidiary only if it reflects the parent’s individual conduct in the infringement at issue.

EU Court Clarifies the Application of the EU Legal Framework for the Electronic Communications Sector to Over-the-Top Services (C-142/18 Skype and C-193/18 Google)

Case C-142/18 Skype Communications Sàrl v Institut Belge des services postaux et des télécommunications, Judgment of the Court of Justice of the European Union of 5 June 2019, Case C-193/18 Google LLC v Bundesrepublik Deutschland, Judgment of the Court of Justice of the European Union of 13 June 2019 SkypeOut is an electronic communications service, but Gmail is not.

A Study on Proposal for EU 2017 ePrivacy(ePR) and its Implications

2017년 ePR안은 EU에서의 개인정보 보호와 관련한 일반법인 1995년 지침이 2016년 5월에 GDPR로 새로 대체된 것에 대응하여, 2002년 ePD의 대체입법을 위하여 유럽위원회(EC)가 2017년 1월 10일에 입법기관인 유럽의회와 이사회에 제출되었으며, 현재 입법절차가 진행 중에 있다. 2017년 ePR안은 EU의 디지털단일시장전략(Digital Single Market strategy)의 핵심목적인 디지털단일시장에서의 신뢰와 보안을 강화하고자 하며, 또한 2016년 GDPR의 글로벌 수준과 정합시키고자 하는 것을 그 입법목적으로 하는 것이라고 할 수 있다. 또한, GDPR과의 관계는 ePR안 제1조제3항이 명문으로 규정하고 있는 바와 같이, 일반법과 특별법의 관계에 있다고 할 수 있다. 그러한 맥락에서, ePR안은 GDPR의 특별법적 지위를 갖는다는 측면에서 개인정보 보호와 관련된 규율에 있어서 GDPR의 다수의 규정을 적용 또는 준용하고 있다. 한편, 2017년 ePR안의 구성은 7장 29개조로 이루어졌는바, 장별 제목을 살펴보면, 총칙(제1장), 자연인 및 법인의 전자통신 및 그들 단말기에 저장된 정보의 보호(제2장), 자연인 및 법인의 전자통신 통제권(제3장), 독립감독기관과 집행(제4장), 권리구제, 책임 및 벌칙(제5장), 위임법령과 집행법령(제6장) 및 최종규정(제7장)으로 되어 있다. 조문수가 전 29조인데 비하여 장수가 많은 편인데, 이는 GDPR의 형식을 도입하였기 때문이라고 생각된다. 이러한 2017년 ePR안의 주요내용을 검토한 결과, 우리나라 관련법제에의 시사점으로서는 첫째로, 전자통신분야 개인정보보호법을 개별법으로 제정하는 것이 바람직하다는 점, 둘째로, 개인정보 관련입법에서 일반법과 특별법간의 역할분담과 관련하여, 2017년 ePR안이 하나의 모범사례를 제시해 주고 있다는 점, 셋째로, 개인정보의 보호와 이용의 조화(균형)가 필요하다는 점, 넷째로, 법인의 전자통신정보의 보호의 필요성을 인식할 필요가 있다는 점, 다섯째로, 개인정보보호 감독기관의 독립성을 확보할 필요가 있다는 점을 제시하였다.The purpose of this article is to examine the major contents of a Proposal for a Regulation on Privacy and Electronic Communications in 2017(‘2017 ePR’) and its implications for the relevant legal system in Korea. More specifically, prior to the full-scale review of the 2017 ePR, I reviewed the legislative process until the 2002 e-Privacy Directive(‘2002 ePD’) was established in 2002, the outline of the relevant legal system, and the need to establish an 2017 ePR separately from the 2016 GDPR. After introducing the main contents of the 2017 ePR, I pointed out implications for the legal system in Korea. Those implications are as follows ; firstly, the need to establish an individual law of personal data protection law in electronic communications sector, secondly, the need of function sharing between general law and special law, thirdly, the need to harmonize the protection and use of personal data, fourthly, the need of protection of corporation s electronic communications data, fifthly, the need for independence of personal data supervisory authorities.

Empowering the ‘Unempowerable’. Behavioural Insights into Informing Consumers about Internet Access Services in the European Union under Regulation 2015/2120

The European consumer policy relies on the ideal of consumer empowerment, which involves providing all consumers with detailed information on the goods on offer. This policy also applies to the electronic communications sector, and empowering consumers who are the end-users of internet access services. The author reviews behavioural law and economics literature that pertains to consumer empowerment and applies the resulting insights to interpret Article 4 (1) of Regulation 2015/2120 laying down measures concerning open internet access in a way that would truly empower the sophisticated consumers. The author also proposes advising or obliging the providers of internet access services to label those services to provide even the unsophisticated consumers with meaningful and understandable information.

Empowering the ‘Unempowerable’. Behavioural Insights into Informing Consumers about Internet Access Services in the European Union under Regulation 2015/2120

The European consumer policy relies on the ideal of consumer empowerment, which involves providing all consumers with detailed information on the goods on offer. This policy also applies to the electronic communications sector, and empowering consumers who are the end-users of internet access services. The author reviews behavioural law and economics literature that pertains to consumer empowerment and applies the resulting insights to interpret Article 4 (1) of Regulation 2015/2120 laying down measures concerning open internet access in a way that would truly empower the sophisticated consumers. The author also proposes advising or obliging the providers of internet access services to label those services to provide even the unsophisticated consumers with meaningful and understandable information.

The Impact of Regulation on Competition in Telecommunications and Piped Gas

This article examines the ex ante powers to regulate competition bestowed on the Independent Communications Authority of South Africa (ICASA) in terms of the Electronic Communications Act, Act No 36 of 2005 (ECA) and on the National Energy Regulator of South Africa (NERSA) in terms of the Gas Act, Act No 48 of 2001 (Gas Act) and the regulators’ recent exercise of these powers to regulate prices in the mobile telecommunications and piped gas industries. Since 1999, the South African competition law authorities have focused on the reactive or ex post exercise of their statutory powers in terms of competition legislation, in order to detect and prosecute anti-competitive behaviour. This includes industries regulated by another sector regulator such as in the electronic communications sector (ICASA) and in the piped gas sector (NERSA). Several complaints against dominant suppliers in these industries have been successfully prosecuted in terms of the Competition Act, Act No 89 of 1998 (Competition Act). There have been far fewer efforts by the sector regulators to proactively exercise their ex ante regulatory powers in order to create a market structure and conditions that facilitate competition in the sectors that they regulate. In this article, we examine the recent exercise of powers by ICASA and NERSA in the mobile and piped gas industries. We conclude that the provisions of the ECA have facilitated (i) the identification and analysis of relevant markets lacking in adequate competition and (ii) the promulgation of regulation that is needed to develop a more competitive environment in due course. However, ICASA's process in exercising its statutory powers has been slow and has suffered from various deficiencies. On the other hand, the analysis indicates that the legislation governing NERSA’s ex ante powers, and the way in which NERSA has enforced that legislation, has led to counter-productive regulation, which has hindered competition in the sector. Accordingly amendments to the Gas Act are required. Amendments effected to the ECA retain guidance to the regulator on how to conduct a market review, but the regulator should exercise these powers more often.

Economic Regulation and Regulatory Performance in the Electronic Communications Sector: Key Themes for African Regulators

Economic Regulation and Regulatory Performance in the Electronic Communications Sector: Key Themes for African Regulators

Measuring the impact of market competition analysis process in EU׳s electronic communications sector: Catalyst or impediment towards market competition?

It has been a few years since the European Commission introduced the Common Regulatory Framework for Electronic Communications according to which all Member States are required to conduct market analysis in the relevant electronic communication markets and apply appropriate ex ante regulatory obligations in the case where competition was not at a satisfactory level. One of the main motivations behind the Commission׳s introduction of the Framework was the promotion of competition in electronic communications sector in regard to the welfare of EU citizens and the creation of a common market for electronic communications. Notwithstanding the fact that the telecommunications market has opened and new operators with new service offerings have emerged, a lot of criticism has been voiced regarding the Framework׳s effectiveness on several fronts (e.g. infrastructure based competition, wholesale/retail costs, uniform market structure across Europe). The paper takes another look at the implementation of the current Regulatory Framework and the ex ante remedies imposed across Member States. The implementation of the Framework is related to the evolution and competition of the fixed narrowband, fixed broadband and mobile group of markets, using indicators for an empirical discussion of the market analysis process in the EU. It uses data derived mainly from the European Commission itself and calculates indices that paint a clearer picture with respect to the evolution and competition in the above group of markets. Based on this process, the paper provides very strong indications that the current Regulatory Framework and in particular the market analysis process promotes competition both at wholesale and retail level. Finally, the paper suggests that the decision to remove market 15 from the list of markets susceptible for ex ante regulation should be revisited.

Protecting the communication: Data protection and security measures under telecommunications regulations in the digital age

This paper aims to provide a comparative overview and evaluation of various legal frameworks for electronic communications security in light of the recent developments in the electronic communications sector. The article also includes an insight on European Union and Turkish legal environment for data protection security in electronic communications sector.The dynamic and ever-changing nature of electronic communication technologies brings brand new opportunities for quick access to extensive information and communication through integrated channels. On the other hand such dynamic nature paves the way for new challenges and concerns regarding electronic communications security. Both national and international sector regulators and policy-makers are encountering new threats for security of electronic communications while trying to adapt to convergence and the ongoing tendency for Internet Protocol (“IP”) based digital networks.11Centre for European Policy Studies (CEPS), E-communications: Regulatory Challenges for the Post-Lisbon Era, available at http://www.ceps.eu/taskforce/e-communications-regulatory-challenges-post-lisbon-era. Various legal frameworks come into force accordingly and legal security measures are created by the regulators and the sector actors, in order to overcome security concerns. Evolution of electronic communication technologies and new challenges that it yields, forces national and international authorities to work for unified solutions and cooperation in fighting against these challenges.

Striking an Accord - Fiddling the Alternative in Alternative Dispute Resolution Systems within the Electronic Communications Sector

This paper evaluates the current legal framework of the communications market within the European Union and concludes that despite efforts to strengthen consumer protection within a B2C dispute context, there is still a gap between conferred rights and guarantees and the ability to effectively exercise them. The paper proposes the creation of a system, holistic in its approach, to bridge that gap and improve access to justice. The mapped system’s intended contribution is its articulation with the market and its responsiveness to consumers. Being conducive to binding and enforceable decisions, it aims at establishing structural and procedural safeguards that ward due process, impartiality and rule of law, while benefiting from the swiftness and lessened formality of traditional ADR. Information and communications technology plays a key part in enhancing those benefits even further. Finally a few considerations are made concerning an eventual harmonisation of ADR in a B2C context throughout the European communications market. These include the establishment of a collaborative network between equivalent ADR bodies on a national level.

The Evolution of the European Regulatory Framework for Electronic Communications

The paper reviews the historical transformation of the European regulatory framework for electronic communications from the era dominated by state-owned enterprises to the presence of regulated competition. In the course of these developments, the vision of the roles of the public and private sectors in electronic communications changed in expected and unexpected ways. While the period is characterized by a shift toward less direct state intervention, the intensity of regulation has increased in many areas. Most recently, in the wake of the financial crisis, new forms of state intervention can be observed, including public investment in communications infrastructure and public-private partnerships. As a result of the reforms, Europe has been able to achieve major successes but it also suffered unanticipated setbacks compared to other regions. The European Union emerged as the global leader in mobile communications during the 1990s and was able to roll-out first-generation broadband access networks more rapidly than many of its peers. Recently, however, Europe as a whole has not performed as well in deploying next-generation networks and advanced mobile communications services. The paper offers a political-economic explanation for these developments and assesses their effects on the performance of the European electronic communications sector and the economy. From this analysis, the European model emerges as a unique institutional arrangement with peculiar advantages and disadvantages. Once these are recognized, sensible next steps to build the strengths while avoiding the weaknesses of the model can be seen more clearly.

Personal Data Breach Notification System in the European Union: Interpretation of “Without Undue Delay”

The fast-moving technologies continually challenge present rules on data-privacy protection. The expansion of computing functions, speed of processing and storage capabilities makes personal information difficult to be controlled. In the EU, the revised EC e-Privacy Directive amended by the Directive 2009/136/EC modifies existing provisions and makes new provisions to enhance privacy protection in the electronic communications sector, which includes the further development of the system of notification of the personal data breach to minimise adverse effects. This paper aims to examine and evaluate the personal data breach notification system, interpret the requirement of "without undue delay" duty and discuss the impact of the revised Directive to business organisations. It finally proposes solutions to improve the notification system to increase the efficiency of privacy protection.

II. THE PROMOTION OF INVESTMENTS IN NEW MARKETS IN ELECTRONIC COMMUNICATIONS AND THE ROLE OF NATIONAL REGULATORY AUTHORITIES AFTER COMMISSION V GERMANY

The judgment of 3 December 2009 in Commission v Germany touches upon the issue of improper implementation by a Member State (Germany) of the EU regulatory framework in the electronic communications sector.1 In this sense, the judgment in question belongs to the relatively large group of rulings in which the European Court of Justice (ECJ) categorizes the legislative actions (or inactions) of Member States in the field of electronic communications as infringing the Union secondary legislation.2 Undoubtedly, however, Commission v Germany constitutes a judgment that is of paramount importance within the above-mentioned group of rulings and deserves a particularly close attention. Being confronted here with the German rules that generally exempted the so-called new (emerging) markets in the sector concerned from ex ante regulation, the Court had an opportunity to express its views on such key regulatory issues as: 1)the position of encouraging efficient investment in infrastructure, and promoting innovation within the hierarchy of objectives that the EU regulation in electronic communications sector aims to achieve;2)the scope of discretionary powers of national regulatory authorities (NRAs) in defining the markets susceptible to ex ante regulation, and in regulating those markets, including the markets having a new or emerging character;3)the role of national legislators in regulating electronic communications markets, and particularly the relationships between national legislators and NRAs in the field of regulation of the markets in question.It must be noted at once that this latter issue has its far-reaching implications at the constitutional level of the Member States, because the relations between legislative and executive (administrative) authorities are usually determined constitutionally. As a result, the annotated judgment concerns not only such teleological, procedural and institutional issues that are crucial for the Union's concept of regulation in the electronic communications sector, but also issues that are seminal from the constitutional perspective of the Member States. Moreover, the judgment in question is also of great relevance to other network-bound sectors subject to regulation at the EU and national levels, especially as far as the status of NRAs and their position vis-à-vis national legislators are concerned.