New Electronic Communications Act

Last year the National Council of the Slovak Republic adopted the Act No. 452/2021 Coll. on Electronic Communications (the “Act”), which fully replaces the previous Act on Electronic Communications (No. 351/2011 Coll.) The Act became effective on 1 February 2022, while some parts will enter into force on 1 August 2022 (e.g. the regulation of number portability) and 1 November 2022, when the last part of the Act applies, introducing restrictions on direct marketing and establishing a list of telephone numbers to which calls for direct marketing purposes will be prohibited. 

The Act is a long-awaited change in the telecommunication sector in Slovakia since it implements the European Electronic Communications Code (the “EECC” or “the Code”). The Directive of the European Parliament and of the Council No. 2018/1972 establishing the EECC was supposed to be implemented by the EU member states by 21 December 2020, but some member states including Slovakia missed this deadline.

Aim

The aim of the Code, as well as of the Act, is to support connectivity (both in the deployment of fibre networks and 5G) and includes measures aimed at enhancing bigger investments into very high-capacity networks, in accordance with EU ambitions to reach advanced connectivity. Another important part of the Code is the aim to provide rules for traditional and so-called “over the-top” (OTT) communication services. 

The newly adopted regulations aim mainly to strengthen the competition, develop the internal market, and improve protection of end users. 

New instruments and institutions

Similar to the previous regulation, the Act contains extensive definitions of terms which the legislator based both on the EECC, as well as on the previous regulation (e.g., the term undertaking used in the previous act is not found in the EECC and only practice will provide an answer to the question of whether the introduction of this definition in an otherwise consistent set of definitions in the Code will not introduce ambiguities into the interpretation of the Act). 

Under the Act, an undertaking means a person who provides networks or services based on a general authorization for networks or services provision, a general authorization for frequency usage, an individual authorization for frequency usage, or based on an individual authorization for numbers usage. In this regard the Act states that the general authorization determines the conditions that are applicable on networks or services provision, with the exception of number independent interpersonal communication services. Thus, number independent interpersonal communication services are exempt from the regulatory frame of the general authorization which in this regard may be interpreted in a way that the provider of the number independent interpersonal communication services is not covered by the definition of the undertaking (which refers to the general authorization). Since the Act attributes certain obligations, as well as rights to the undertaking, when interpreting the Act, it is necessary to examine whether the term undertaking or a different term is used (e.g. the term provider of interpersonal communication services, which can but does not have to be the undertaking). 

More information regarding number independent interpersonal communication services may be found below. 

Electronic communication service 

The Act uses the term Electronic communication service that has been in use so far. In this regard the explanatory memorandum of the legislator states that the definition of electronic communication services should not be based solely on technical parameters but should rather stem from a functional approach. While "signal transmission" remains an important parameter for determining the services falling within the scope of the Act, the definition of electronic communications service also applies to other services that allow communication. The definition therefore includes three types of electronic communication services which may partially overlap: an internet access service, an interpersonal communication service or a service which consists partly or wholly of signal transmission.

By definition, electronic communication service is usually provided for remuneration, while in the digital economy user information has monetary value too. From this perspective, the provision of data might also be seen as remuneration. In other words, remuneration does not need to be paid in money only but can be in the form of the data provision too. 

Interpersonal communication services

The new term interpersonal communication service, unknown in the previous regulation, is also introduced. Especially those entities that provide such services in Slovakia should be aware of this and check if they fall under telecommunications regulations under the new regulation.

Under the new legislation, interpersonal communication service means a service which is usually provided for remuneration, and allows direct interpersonal and interactive exchange of information via networks between a definite number of persons, while the persons who initiated or participated in the communication determine the recipient; this service does not include services which enable interpersonal and interactive communication only as an ancillary component which is inextricably linked to another service.  

According to the explanatory memorandum, the number-based interpersonal communication service is a service using the numbers from either a national or an international numbering plan, and it is connected to publicly attributed sources of numbering. It is a service where numbers are assigned to end users in order to ensure a connection between terminal points allowing end users to contact the persons to whom such numbers have been assigned.

On the other hand, number-independent interpersonal communication services should be subject to telecommunications regulation only if the public interest requires that specific regulatory obligations apply to all types of the interpersonal communication services, regardless of whether the numbers are used to provide them. It is justified to treat number-based interpersonal communication services differently, as they use and therefore benefit from a publicly secured interoperable ecosystem.

Electronic communication network 

The electronic communication network is defined in a way so that it also includes forms of network management, for example through software emulation or software-defined networks. The Act regulates all networks regardless of the transmission medium used, or the location of terminal points (fixed, mobile). 

The Act adds a new term of high-capacity network to the current term of high-speed network (which remains unchanged). The high-capacity network is a subcategory of the high-speed network which is tied to the way data is distributed via an optical wire.

Rights to real estate of third parties

The Act also provides third parties rights to real estate in the case of placement of infrastructure elements on land owned by third parties. The Act regulates compensation for interference with the legal status of owners: the compensation can no longer be one-off only, but can be either one-off or also repeated, and it must always be appropriate. This new regulation has a significant impact on the rights of property owners where physical infrastructure is located. The adequacy of the compensation is assessed according to the extent of interference with the rights of the property owner, and in connection to the valid decisions of the building authority regarding the location of the building.

Traffic and location data 

The protection of users' traffic and location data continues to apply, which is also related to the obligation to subsequently destroy or anonymize them, or to a condition for obtaining consent for such data processing.

The Act also regulates the possibility to process the above-mentioned data with the user's consent. This is possible subject to meeting certain conditions, provided that the processing takes place only in the necessary extent, and is carried out for explicitly defined purposes, such as: 

• Network or service operation; 
  
  
• Billing for service provision, invoicing, and proving payment claims for the service provided when collecting debts; 
  
  
• Answering questions, replying to complaints, dealing with users’ warranty claims; 
  
  
• Prevention and detection of security incidents and illegal actions;
  
  
• Provision of co-operation to the competent state authorities.

In this regard, it is important to note, especially for providers of number-independent interpersonal communication services, that according to the explanatory memorandum, these services have become part of the definition of public electronic communication services, and it is therefore necessary to ensure that they also comply with provisions on data protection in electronic communications. Providers of such services should therefore also ensure an adequate level of data protection when providing their services. 

Starting a business in Slovakia and numbering 

Under Slovak telecommunications regulations, persons planning to provide public networks or services that are subject to general authorization are obliged to notify this plan to the office at least 15 days before networks or services provision commencement. In contrast to the previous regulation, the new regulation requires the notification to be made at least 15 days in advance. The undertaking should specify information, including contact information in the notification form. In this regard we recommend that foreign undertakings consider also including a local contact for the purposes of communication with the Telecommunication office, since the authorities in Slovakia usually communicate in the Slovak language. 

Numbers are allocated in Slovakia based on individual authorization for the use of numbers. The Telecommunication office states in the individual authorization for the use of numbers whether the rights arising from the allocation of the numbers can be transferred, and what are the conditions for the transfer of the right to use the numbers.

The Act also newly regulates the possibility to change the holder of the individual authorization for the use of numbers. The authorization holder may apply for the change with respect to all the rights relating to the allocated numbers or a part thereof.  The Telecommunication office decides on the change in the authorization holder subject to meeting the statutory requirements. 

Direct marketing and cookies 

The new regulation will not only affect entities operating in the telecommunications sector, but some of its provisions will impact the wider public too. The Act regulates conditions of direct marketing (more regarding this topic may be found here), as well as the conditions for use of so-called cookies.

Since these provisions relate not only to telecommunications providers, but to the wider spectrum of business entities, some key information about the new regulation is present in a separate article. 

Summary 

In general, the Act is a transposition of the EECC, whereas the legislators have gone further with certain provisions, e.g.  direct marketing regulations. Moreover, because of the ePrivacy Directive transposition, the existing provisions on collecting and accessing information stored in the end user’s terminal devices have changed. 
The Act is important as it has introduced many new features in Slovakia and approximated the legal regulation towards new technologies. We will carefully watch how it works in practice.
 

Read the article in Slovak here