![CA-2024-002837 - [2025] EWCA Civ 1118](https://backend.juristeca.com/files/emisores/logo_Sjvxvlx.png){kind=logo}
Discussion and analysis
Discussion and analysis
This appeal turns on a question of statutory interpretation, the object of which is to discover the objective meaning of the words used having regard to the statute as a whole, its historical context and its purpose: see for example R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687, per Lord Bingham at §8.
There are important areas of common ground between the parties in this respect:
First, the 2003 Act was enacted to implement Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (the “CRF”) which came into effect at the beginning of the 21st century.
Second, the regime for communications regulation in the 2003 Act has the status of EU-derived domestic legislation within the meaning of s.1B(7)(b)-(c)(i) of the European Union (Withdrawal) Act 2018.
Third, the definition of ECS in the 2003 Act is to be construed consistently with the equivalent provision in EU law.
Fourth, the 2003 Act was amended – including to introduce s.32(2A) – in 2020 to reflect the updated framework in Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (the “EECC”).
Accordingly, the starting point in this case is to ascertain the meaning of the words used in s.32(2)&(2A) by reference to the 2003 Act as a whole, in light of the fact that its purpose was to implement the EECC.
Electronic communications service is defined in Article 2(4) of the EECC as follows:
“‘electronic communications service’ means a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of services:
(a) ‘internet access service’ as defined in point (2) of the second paragraph of Article 2 of Regulation (EU) 2015/2120;
(b) interpersonal communications service; and
(c) services consisting wholly or mainly in the conveyance of signals such as transmission services used for the provision of machine-to-machine services and for broadcasting.”
It is also agreed between the parties that “consisting in, or having as its principal feature” in s.32(2A) has the same meaning as “wholly or mainly” in Article 2(4)(c).
The clearly better reading of Article 2(4), as Mr Holmes submitted, is that content services need to be excluded from the analysis before the “wholly or mainly” test is applied. That is because it defines an ECS, relevantly, as a service which encompasses, with the exception of services providing, or exercising editorial control over, content, services consisting wholly or mainly in the conveyance of signals. In other words, the test requires an enquiry as to whether – leaving out of account content services – the service is one which consists wholly or mainly in the conveyance of signals.
Mr Ward KC did not challenge that reading head-on, but submitted that s.32(2)&(2A) do not use the same order of words as is found in Article 2(4), and that it is common ground that the changes made by Parliament so as to implement the EECC did not make any difference.
As to the first point, the ordering of the words in s.32(2)&(2A) is at best ambiguous, so far as Sky’s argument is concerned. As applied to paragraph (c) of s.32(2A), the ordering of the words is: any service consisting in, or having as its principal feature, the conveyance of signals, except so far as [that service] is a content service.
Sky’s case is that one starts by identifying the service to be assessed: is it any of those specified in s.32(2A)(a), (b) or (c)? Paragraph (c) contains the test of preponderance: the actual service (not a constructed service) qualifies if it is wholly or mainly for the conveyance of signals. It is only after that step that the content carve-out applies.
Mr Ward submitted that the word “it” in “except so far as it is a content service” in s.32(2) is important, because it is referring to the type of service identified (i.e. (a), (b) or (c) within s.32(2A)). He agreed with Ofcom that the words “so much of” in the content carve-out in s.32(7) show that the service can be split up, but submitted that this was for the purpose of securing that the content is not regulated as if it were a mere transmission service.
Mr Ward’s interpretation is a possible reading of the wording, but the wording is also consistent with a test that requires an enquiry as to whether – leaving out of account content services – the service is one which consists of, or has as its principal feature, the conveyance of signals. Interpreting s.32(2)&(2A) consistently with Article 2(4), which it is common ground is the correct approach, indicates that it should be read in that way.
Mr Ward’s reliance on the fact that the amendment to s.32 was not intended to effect any change only assists if the legislation prior to its enactment clearly required content services to be disregarded only after the principal feature of the overall service (including its content element) had been identified. In my judgment, however, that was not the case either by reference to the original wording of s.32 or by reference to the pre-existing European legislation.
That is equivocal to the same extent as the amended version. If the phrase “except in so far as…” is inserted after the word “service” in the first line of that quotation, which makes sense because “it” refers to the “service”, then the section can as readily be understood as requiring the content service to be excluded before determining the principal feature of the overall service, as requiring the content service to be excluded afterwards.
The pre-existing EU legislation has a somewhat complicated history, and is addressed in the next section of this judgment.