CA-2024-002837 - [2025] EWCA Civ 1118

We were referred to certain decisions of the European Court of Justice. Both parties accepted that none of them dealt with the issue raised in this appeal. They are of peripheral, if any, relevance and I address them only briefly in this section. All were decided under the CRF regime.

Mr Ward referred us to the decision of the European Court of Justice in Google LLC v Federal Republic of Germany (Case C-193/18) [2019] 1 WLR 6044 (“Google”). This case concerned “Gmail”, an e-mail service operated by Google. Gmail is an OTT service, as it operates over the internet without the participation of a traditional communications operator. Google’s participation in the process is to provide its users with a service enabling them to send and receive emails over the internet. To access the service, users have to open an e-mail account, whereupon they receive an email address from which emails can be received and sent. Google uses email servers to identify the target server, by means of the Domain Name System and to send the data – broken down into several packets. Those packets are then routed through the internet operated by third parties, over which the sender of the packets has no control.

The question for determination was whether Gmail was an ECS within the meaning of Article 2(c) of the CRF. The Court held that it was not. It was common ground (see §34 of the judgment of the Court) that the provider of a web-based email service, such as Gmail, conveys signals. Google did so by uploading the data package to the open internet, or receiving that data package where it is the recipient of the email who holds the Gmail account. The service operated by Google does not, however, constitute a service consisting “wholly or mainly” of the conveyance of signals, because it is “(a) the IAPs of the senders and recipients of the e-mails and, as the case may, the web-based e-mail service providers and (b) the operators of the various networks of which the open internet is constituted which, essentially, convey the signals necessary for the functioning of any web-based e-mail service, and it is they who bear responsibility in accordance with UPC DTH, para 43”: see §36 of the judgment. Google’s participation in the sending and receiving of emails was not sufficient to enable its service to be regarded as being wholly or mainly in the conveyance of signals: see §37 of the Court’s judgment.

The reference to UPC DTH was to another decision of the ECJ cited to us, UPC DTH Sàrl v Nemzeti Média-és Hírközlési Hatóság Elnökhelyettese (Case C-475/12) (2014). It established the proposition relied on in Google, that if the provider of the service was responsible to end-users for transmission of the signal carrying the service for which they have subscribed, it did not matter that the transmission of signals was carried out by someone else. Otherwise, the decision did not advance either side’s case.

Google is a straightforward application of the “wholly or mainly” test, balancing the relative importance of that technical aspect of the Gmail service which consisted of conveying signals, with the remainder of its technical aspects.

Despite Mr Ward’s submission to the contrary, the case says nothing about whether any content element should be taken out of account before the “wholly or mainly” test is applied. Mr Ward relied on the Court’s description of Article 2(c) at §27 to §29, in particular the fact that it said that it defines “first” an ECS as “a service … which consists wholly or mainly in the conveyance of signals…” and “secondly” that the concept of ECS excludes content services. He submitted that if Ofcom’s case is correct, the Court would have reversed the order of those points. This submission makes the same mistake as that in relation to the BEREC report. The Court was here simply recording the order of the words in Article 2(c), which itself (as already noted) does not dictate any particular order in which the steps involved in the enquiry must be taken. The Court can hardly be taken to have been saying anything about the stage at which content services should be left out of account, as the point was simply not in issue.

Mr Ward also referred us to Skype Communications Sàrl v Institut belge des services postaux et des télécommunications (Case C-142/18) (2019), but this says nothing more than can be found in Google. It is a similar case to Google, but with the difference that the service in question (“SkypeOut”, enabling calls to be made between a computer and a telephone) was found to be an ECS. That was because the transmission of the voice calls was made pursuant to agreements between Skype and the telecommunications providers, and it was those agreements that made transmission to the public switched telephone network technically possible. That made Skype responsible to subscribers for the ‘Voice over IP’ service, which was enough to bring the service within the definition of an ECS.

Mr Holmes referred us to UPC Nederland BV v Gemeente Hilversum (Case C-518/11) (2013). He accepted that it was different from the present case, as it did not involve a pay TV provider like Sky that made any of the content it provided. The relevant regime was again the CRF. The question posed for the Court was whether the service provided by UPC consisting of a basic cable TV package, for the delivery of which both transmission costs and an amount relating to payment to broadcasters and copyright collecting societies in connection with the transmission of programme content are charged, falls within the scope of Article 2(c) of the CRF. The Court (at §38 to §41), having referred to the recitals to the CRF, acknowledged that content regulation and transmission regulation were effected pursuant to separate and parallel regimes.

At §42, the Court recorded that UPC had confirmed at the hearing that it did not produce the programmes included in the basic cable TV package or exercise editorial control over them. The Court concluded, at §43, that the fact that UPC’s customers take out a subscription, for the purposes of accessing that basic cable package, did not mean that the service provided by UPC was taken out of the scope of Article 2(c) of the CRF. On the contrary, it said at §44-§45 that UPC’s service fell within the CRF so far as it included the conveyance of signals, as any other interpretation would considerably reduce its scope, undermine the effectiveness of its provisions and compromise the achievement of the objectives pursued by it. At §46, it said:

“On the same grounds, the fact that the transmission costs charged to subscribers incorporate the payments made to broadcasting channels and the royalties paid to copyright collecting societies in connection with the transmission of programme content cannot preclude the service supplied by UPC from being characterised as an ‘electronic communications service’ for the purposes of the NRF.”

Mr Holmes submitted that, while UPC Nederland was clearly not directly on point, it was at least consistent with Ofcom’s approach: UPC provided content (albeit produced by others), but the Court proceeded on the basis that insofar as its service included conveyance of signals, that was enough to render it an ECS.

Such support as UPC Nederland might lend to Ofcom is limited by the fact that the Court proceeded on the basis that UPC did not itself provide content services. That meant that the question in this appeal, whether content service should be taken out of account before applying the “wholly or mainly” test, did not arise. There is no mention of it in the Court’s judgment. The case nevertheless reinforces the importance of the separation between the regulation of transmission services and the regulation of content services, and that this demands that a service which consists of the conveyance of signals must be regulated, notwithstanding that the charges for that service include the cost to UPC of the acquisition of the content which it is transmitting. To that, limited, extent it provides some support for Ofcom’s case.

Mr Holmes submitted that UPC should in fact have been regarded as providing content services – a point to which I return briefly below. But that does not help since the Court in UPC Nederland did not analyse it in that way.