As consumers of electronic communications services, we consume the service we buy all the time – when watching our favourite film or series, when calling our friends or when checking the latest news update online. As consumers we are mostly concerned with the immediate reward of the service, and little we check and understand what goes behind the service. In truth we don’t need to know a lot, but the branch of law protecting consumers in this area hinges a lot on the ‘right to information’. As consumers we have an obligation to understand our rights and obligations when procuring electronic communication services.
The European Electronic Communications Code
On the 11 December 2018, the European Parliament and Council issued Directive (EU) 2018/1972 establishing the European Electronic Communications Code (“the Code”). This amended and recast four pre-existing Directives in the electronic communications sector. The Code has enhanced its protection for end-users in this market in light of technological and market developments that happened over the years. The “end-user” includes also certain limited categories of legal persons, which are micro-enterprises, small enterprises and not-for-profit organisations.
Electronic communications services would typically cover TV distribution (not content), telephony and internet services. Yet, the Code has included in this definition also interpersonal communication services which are ‘number-independent’, such as messaging services like WhatsApp or Skype.
Right to be informed
The Code requires providers of electronic communications services to provide, free of charge an in a clear and comprehensible manner, an information set covering the details of the provider, the type of service, price, duration, etc. This is something that as consumers, we are already accustomed to. However, this information will now have to be provided in a contract summary template, which will be adopted by the Commission by 21 December 2019.
This means that as from 21 December 2020, which is the deadline for transposition into national law, all European consumers will be provided with the same template, including the same set of information for similar services. This should encourage comparability between providers, and enhanced predictability by the consumer knowing what to expect from a provider of electronic communications services.
The Code also mandates Member States to have an independent comparison tool enabling comparison of different services offered by several providers. The Malta Communications Authority (”MCA”) already offers www.telecosts.com which is substantially very similar to what the EU is mandating, although we should see some changes. But is information enough?
Are consumers sufficiently protected just by providing them with clear, unambiguous information about the product they are about to purchase. The legislator clearly thinks not.
The Subscriber Contract
The Code regulates the subscriber contract itself and limits the duration of such contracts to a maximum of 24 months. The Code, by way of exception, allows Member States to adopt laws mandating shorter maximum contractual periods. This could mean that the legislator in Malta might push the market to go for shorter terms. After the contract is automatically prolonged, the Code requires that the end-user can then terminate with a maximum of one-month notice, or a shorter notice period if decided by the local legislator. The Code will also require operators to inform consumers that their contract will be automatically prolonged and also to provide “best tariff advice” to the end-user. This is strikingly different from the generic obligation to give best tariff information to consumers at least annually. One understands advice to be more specific than mere information. However, both are required to be the “best”, which is a standard that is difficult to assess from an objective legal point of view.
Just like in the sale of goods, there are rules protecting consumers when goods are defective. The Code provides that where there is a significant continued or frequently recurring discrepancy between the actual performance and the performance indicated in the contract, then the consumer would be entitled to the remedies available in national law. This includes the right to terminate the service without incurring charges. This provision does not apply when an end-user is procuring internet access services or number-independent interpersonal communications. It is important to note however that in 2015, the EU published Regulation (EU) 2015/2120 on open internet access, which established common measures on how to safeguard non-discriminatory treatment of traffic in providing internet access services and related end-user rights. Requirements of which, included several speed and quality of service (QoS) parameters in subscriber contracts and requiring providers to provide remedies where there is a significant discrepancy (continuous or regularly recurring) in performance.
Exceptionally, in contracts for electronic communications services, there is an option for the operator to modify contractual conditions. If that happens, the law requires operators to notify consumers of the modifications and their right to terminate the contract if they do not accept the new conditions. The current law obliges operators to notify at least one month in advance. In the Code, the European legislator gives an option to Member States to increase this notice period by up to three months. Locally, this will largely be dependent on how the legislator, together with the regulator and different stakeholders, view the needs of consumers. This right to terminate does not apply if the proposed changes are exclusively to the benefit of consumers, are purely administrative in nature and have no adverse negative effect or are directly imposed by EU or Maltese law.
Switching Providers and Universal Service Obligation
Consumers of telephony services (both fixed and mobile) value the fact that they can port their number when switching from one service provider to another. The Code emphasises the fact that the switching process needs to be efficient, simple and free for the end-user. The process needs to be done in the shortest time possible and in any case within one working day. With the changes that the Code will bring about, the consumer will also retain the right to port a number at least for one month after termination of a contract and if the porting process fails, the end-user will be able to reactivate the number and all related services, until porting is successful. The Code also mandates that when porting pre-paid services, unutilised credit shall be refunded.
The Code introduces similar principles for switching of internet access services, albeit subject to some technical limitations. It may not always be possible to ensure continuity of service, when competing providers utilise different technologies and terminal equipment, as is the case here in Malta. Nonetheless, these principles should foster increased co-ordination between providers of internet access services.
This increased dependence on internet, is also evident in the fact that the universal service obligation includes the requirement for an affordable adequate broadband internet access service. This bolsters the current universal service requirement issued by the MCA. One should therefore expect that the notion of “adequate broadband” in the Code, would result in an upward revision of the minimum speed requirement of 4Mpbs in the current Decision. What is affordable is also debatable, but the Code gives guidance on how to measure affordability, taking into account mostly the low-income earners or consumers with special social needs.
In the coming months we should be seeing more detail coming out, especially when the plans for transposition are issued by the MCA.
For further information please contract Dr. Denia Ellul