The new telecommunication act

Date 19 jul. 2011

 

A new act concerning electronic communication networks and services (the Telecommunication Act) entered into force on 25 May 2011. The Telecommunication Act overall regulates the provision of network and transport of communication in the network.


Among other things, the purpose of the act is to promote the establishment of a well-functioning, competition-based market for offering of electronic communication networks and services. The end-users are given a number of specific options, and they are guaranteed access to several basic services on reasonable terms and at a reasonable price. Moreover, the end-users are guaranteed basic rights in connection with agreements on delivery of electronic communication networks and services.


Background for the new Telecommunication Act

The new Telecommunication Act is based on two underlying purposes:


Firstly, a number of EU directive requirements which accompanied the adoption of a new set of directives in November 2009 concerning telecommunication are implemented.


Secondly, the new Telecommunication Act provides more flexible, simple and future-orientated legislation. The Telecommunication Act is accompanied by the commencement of a number of new and revised executive orders. However, the new Telecommunication Act is mainly an expression of a continuation of current legislation as regards content.


Implementation of EU regulation

The EU regulation which is implemented with the new Telecommunication Act consists of several directives: The Framework Directive, the Access and Interconnection Directive, the Authorisation Directive, the Universal Service Directive and the Data Protection Directive. Apart from this, changes are being implemented in the light of two regulations concerning co-operation between national authorities with responsibility of enactment of legislation concerning consumer protection and The Body of European Regulators for Electronic Communications (BEREC) and its support office.


End-user rights

As a significant change, the Act has lead to an update of legislation concerning end-user rights:


  • New provider notion
  • Authority to issue rules concerning:
    • The right to a contract
    • Network neutrality
  • Handling of personal data
  • Portability of numbers

New provider notion

The provider notion in the new Telecommunication Act distinguishes between commercial providers and other providers. Providers who have electronic communication as their main activity are categorised as commercial providers. The categorisation of a provider as being commercial entails that the provider has a number of special rights and duties.


As a starting point, hotels, cafés, supermarkets and camping grounds (that, for example, provide wireless internet for their customers) are not categorised as commercial providers. However, under certain circumstances , they can be categorised as providers. Even though they do not have the same rights and duties as commercial providers, this means that they have several duties under the act, including a duty to register information concerning internet trafficking (logging).


Authority to issue legislation – The right to contract and network neutrality

The new Act contains an authority for the Minister of Science, Technology and Development to adopt rules concerning end-users’ (consumers as well as companies) right to a contract which must also mention certain new conditions. A draft for a revised contract notice exists in which the authority is being used and in which certain minimum requirements for contracts with end-users are specified. If the minimum requirements are not observed, there is a risk that the contract cannot be enforced.


Furthermore, the Act authorises the National IT and Telecom Agency to secure network neutrality. This means that the end-users must have access to an open and neutral internet without priorities from the provider. No limitations must be made as regards specific providers (such as Skype or YouTube traffic), while it is permissible to prioritise traffic with regards to services (for example Voice/IP services). The area is regulated by an industry agreement.


Handling of personal data – fines and duty of notification

The legislation regarding handling of personal data is mainly in accordance with the previous Telecommunication Act. However, the Act now makes it possible to fine violation of legislation concerning handling of personal data.


In addition, there is a new rule concerning duty of notification in cases of violation of personal data security where it is expected that it will cause a violation of personal information or private life for end-users. Furthermore, there are new rules concerning consent from end-users to store information (cookies).


A security breach will be considered violating if it may result in theft of identity, fraud, damage of reputation etc. The present regulation will be implemented in line with the Minister of Science, Technology and Development’s authority to legislate through statutory orders. A draft of a statutory order dealing with information security and preparedness for electronic communication networks and services is in hearing.


Portability of numbers within one weekday

Section 27 of the Act establishes new rules on portability of telephone numbers (clients’ right to include phone numbers when changing phone company). In the future, portability must happen within one weekday (i.e. by the end of the weekday following the weekday where portability was requested) and must thus not wait for a fixation or notice period to end. There is, however, still a possibility for the end-user to enter into an individual agreement regarding a new date for the portability.

Conclusion

Mainly, the new Act is a continuation of previous telecommunication legislation. The new Act has thus primarily made the Telecommunications Act more available and user friendly. However, at the same time, the Act has implemented a number of new of EU rules focusing on end-user rights which telecommunication companies must be acquainted with and implement.



If you have any questions or require additional information on the new Telecommunication Act, please contact Attorney Christoffer Galbo (cga@mwblaw.dk), Attorney Henrik Syskind Pedersen (hsp@mwblaw.dk) or Assistant Attorney Sofie-Amalie Gregaard Brandi (sab@mwblaw.dk).

 

The above does not constitute legal counseling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions or considerations.