On 13 June 2019, the European Court of Justice
ECJ decided that the web-based email service Gmail does not constitute an
"electronic communications service" within the meaning of
Article 2(c) of the Framework Directive (Directive
2002/21/EC as amended by Directive 2009/140/EC).
This classification applies to a web-based email service which
does not itself provide internet access and does not consist wholly
or mainly in the conveyance of signals on electronic communications
networks. Gmail is an over-the-top (OTT) service, i.e. a service
available over the Internet without the involvement of a
traditional Internet service provider. Gmail uploads to the open
internet and receives from it, via its email servers, the data
packets relating to the emails sent and received, respectively, by
the holders of a Google email account. However, this does not
constitute a "wholly or mainly" conveyance of signals.
Not Gmail, but the Internet access providers of the
senders/receivers
